Preamble

The House met at half-past Nine o'clock

PRAYERS

[MR. SPEAKER in the Chair]

Orders of the Day — Juries (Disqualification) Bill

Question proposed, That the Bill be now read the Third time.

Mr. Alfred Dubs: A number of things were said on the last two Fridays about the attitude of many Opposition Members to the Bill. The Third Reading gives us a chance to set the record straight, and to say one or two things about the content of the Bill, and what we think is wrong with it.
I emphatically support the jury system in this country. I have done so for a long time. It has served us for centuries. Although there have been criticisms of the jury system for many years, it is still the best system. One has only to look at the problems in Northern Ireland, which does not have juries in the courts, to realise that juries in this country are a source of strength to us all.
It is a personal regret of mine that I have never served on a jury. It might have given me some different ammunition to use in speeches on the Bill. I have listened with envy to people who have served on juries, and who have told me about what goes on—subject, of course, to confidentiality on what has taken place in the jury room.
When one is asked to serve on a jury, it is not just a matter of exercising one's civil liberty. It is also a matter of meeting one's civic duties and obligations. It is therefore not just a matter of saying that we believe that people, possibly with criminal records, should exercise their civil liberties. It is also a matter of making sure that people live up to civic duties and obligations. I believe that there is a problem. Nobody has denied that there is a problem, and there have been some disquieting stories, mainly anecdotal, about individuals called to serve on a jury whose attitudes to serving on a jury have not been consistent with a fair and sensible system of criminal justice.
The Minister in his speech a couple of weeks ago, and, indeed, in Committee, quoted one individual who said that he would try to acquit every person who came before him. There is a problem, although the evidence of the extent of the problem is somewhat thin. Most of the people who claimed that there were difficulties were using anecdotal evidence rather than anything more solid.
William Shakespeare, in "Measure for Measure", put into the mouth of Angelo the following:
I do not deny, The jury, passing on the prisoner's life, May in the sworn twelve have a thief or two Guiltier than him they try.

That excerpt was quoted in the report of the departmental committee on jury service under the chairmanship of Lord Morris, whose report I think is still the most authoritative report on the subject. On page 41, paragraph 131, it refers to section 3 of the Civil Rights of Convicts Act 1828. It is relevant to the Bill and to Third Reading. It says:
And whereas it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have undergone the punishment to which they were adjudged: Be it therefore enacted, that where an offender hath been or shall be convicted of any felony not punishable by death, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured hath and shall have the like effects and consequences as a pardon under the great seal as to the felony whereof the offender was so convicted".
Thus, the Civil Rights of Convicts Act seems to say that, once the sentence has been served, the individual should have a clean slate. Of course, the purpose of the Bill and, to a more limited extent, our present system is that the consequences of having committed a criminal offence should last longer than the duration of the punishment.
I note that the Bill attempts to tackle a problem. However, the only research into that problem that I have discovered takes a slightly different view from that adopted by many Conservative Members. I refer to a book published in 1979, entitled "Jury Trials". The joint authors were John Baldwin and Michael McConville. They set out to do research into the effectiveness of our jury system and in their conclusions they commented on its perfections and imperfections. In its conclusions, which appear on page 134, the book states:
It may be the case that the system reaches a right and just determination as often as can reasonably be expected of any tribunal and we must live with a proportion of failures. The results of empirical research do not in the end obviate the need for value judgments, but such evidence ought to compel the protagonists in the debate to define the issues with greater clarity and discrimination. In future debates, it seems to us that opponents of trial by jury will have to contend with the fact that the jury seems to enjoy the considerable confidence of the public; it appears to return verdicts that are generally deemed reasonable by judges, lawyers, and the police; and, so far as one can tell, it successfully maintains its political and constitutional independence. On the other hand, defenders of the jury must take account of the fact that the ideal of the jury as a representative cross-section of the community is only partially reflected in its actual composition; that its verdicts are with some frequency highly questionable in character; that its capriciousness is likely both to prejudice the innocent and to benefit the guilty; and that there is no obvious corrective for its unpredictability.
That is the conclusion drawn in the only research on the way in which juries operate that I have been able to discover. Most Conservative Members seem to disagree with the conclusion that there is no obvious corrective for that unpredictability. Clearly the line taken in the Bill is that the jury system can best be made more predictable by excluding those who have committed criminal offences on a much wider basis than at present. No one has argued that that will solve all the problems and that, if the Bill is enacted, there will not be jurors who will be opposed to the integrity of our criminal justice system even though they cannot be caught by the Bill. I certainly would not argue that. Nor has anyone argued that the great majority of those disqualified under the Bill would not be sensible and objective jurors if only they could serve.
The Bill is intended to catch the few individuals who are opposed to the system. However, despite some of the political rhetoric last week and the week before that, the argument has always centred on where to draw the line. It is not a matter—as the Minister said—of some of us


being in favour of crooks on juries. There will always be crooks on juries, and the Minister knows it, but the argument simply centres on where to draw the line. That has been the argument for several centuries, and it is still the argument today. It is an essential feature of the Bill that the line should be drawn quite a bit further over.
We do not disagree that a line should be drawn. We do not disagree that those who have served custodial sentences should not be allowed to serve on juries. Indeed, I believe that those who have served such sentences should be barred from serving on juries, but we are concerned about those whom the court has considered worthy of more lenient treatment. I refer, in particular, to those who have served community service orders or those who have been on probation. The argument centres on whether the exclusions imposed on them by the Bill go too far. I believe that they do go too far, and that is the nub of our argument. If the Minister and the hon. Member for Skipton and Ripon (Mr. Watson) had been willing to accept that, we would not have had to spend so much time debating the matter, and the Minister knows it.

The Under-Secretary of State for the Home Department (Mr. David Mellor): The hon. Gentleman is labouring mightily in the vineyard to try to give some credibility to what I, and no doubt my hon. Friends, persist in regarding as an essentially spurious case. I appreciate that the hon. Gentleman has quite a lot of time that he wants to fill in, but perhaps he will do us the courtesy of dealing with the central argument, which has been persistently advanced by Conservative Members, but which he has repeatedly—no doubt consciously rather than unconsciously—slipped away from. I am sure that the hon. Member for Blyth Valley (Mr. Ryman) will also want to know the answer.
Far from recommending that there should not be changes, the Morris committee recommended changes that were carried into effect by the then Labour Government. What does the hon. Gentleman say to the suggestion that the imposition of suspended sentences and other disposals mentioned in the Bill essentially cover those who would have been sent to prison before 1967 and so would have been disqualified? That is the question to which he must address himself

Mr. Dubs: That is one point to which I must address myself, but it is not the only one, because the Bill goes much further than that. I was addressing myself to some of the arguments—

Mr. Martin M. Brandon-Bravo: Address yourself to that

Mr. Dubs: Subject to your ruling, Mr. Deputy Speaker, I think that I shall address myself to whatever arguments I choose. It so happens that I was going to come on to that point. The Minister's point was dealt with quite adequately a few weeks ago by my hon. Friend the Member for Hammersmith (Mr. Soley). The Minister may say that he does not agree with that, but he should listen for a while. He is piqued because he has egg on his face because of what happened last week and the week before that

Mr. Mellor: I have no egg on my face. I have enjoyed the diverting spectacle of the hon. Gentleman mounting a

one-man, three-week filibuster. I hope that his services to the Opposition will be recognised. Indeed, I am sure that they already have been. The other day, the hon. Member for Hammersmith (Mr. Soley) was not at his best. I put it to him, and my hon. Friends agreed, that he thought that unless every jury had a leavening of crooks the system would not work properly. I do not regard that as a substitute for an intellectually watertight argument.
The hon. Member for Battersea (Mr. Dubs) has trailed his coat this morning by saying, in effect, that we have got it all wrong. He is obviously in a good forensic mood this morning and is capable of knocking down any argument, so I am asking him to knock down that central plank of our case and to put us out of our misery. If he refuses to do so, it must be a sign that he is trying to weasel round the central issue, which has convinced the hon. Member for Blyth Valley (Mr. Ryman), but which obviously does not get anywhere near convincing him—

Mr. Deputy Speaker: Order. That is a very long intervention. I should remind hon. Member that long interventions make speeches longer

Mr. Dubs: The Minister says that the central issue involves suspended sentences and community service orders. Having listened to the speeches that have been made in support of the Bill, I do not think that that is the only issue at stake. There are other much more important issues, such as the fact that anyone who is given any custodial sentence will be barred from a jury for at least 10 years. I understood that that was the main point at issue, and that the argument about suspended sentences, community service orders and probation took the point a stage further

Mr. Mellor: indicated dissent

Mr. Dubs: The Minister shakes his head. If that was not the point at issue, neither he nor his colleagues made that abundantly clear.
I stick by my argument that the debate on the Bill and the principle embodied in Third Reading is about where the line should be drawn on disqualification. I repeat that it is going too far to exclude for 10 years people who have served a community service order, and for five years people who have served a probation order. Those who have had those punishments imposed upon them by the courts are regarded as not deserving of a custodial sentence. Therefore, they are treated differently from those being sent into custody. They are not regarded as a threat or a danger to their fellow citizens, which is why they are allowed to stay at large and to live in their homes.
The Minister's argument is that everybody on a community service order or a suspended sentence would, years ago, willy-nilly have had a custodial sentence—

Mr. Mellor: Most

Mr. Dubs: I shall not parade a great number of statistics as that would take too long. Given the increase in both custodial and non-custodial sentences, it does not follow — nor does the judiciary say — that every community service order is directly and solely an alternative to imprisonment. Indeed, when there are breaches of community service orders, it does not mean that, of certainty, the person is then sent into custody. The contention that, but for a little luck, such people would be inside is not fully supported by the facts.
There is an equally good argument that people on community service orders are being treated leniently by the courts because their circumstances are such that they should be so treated, and they would not necessarily have gone to prison. The courts are using the community service order as a new form of non-custodial punishment.
Even if the Minister disagrees with my judgment—I cannot prove it by hard facts, although I suggest that the figures support my case — he cannot use the same argument about probation orders. It has never been argued that probation orders are in the main an alternative to custody, yet they are widely used. Under the Bill, people on probation will be debarred for five years from serving on a jury. That goes too far. I accept that it would be right to debar from jury service anybody currently serving a community service or probation order, but once they have completed that punishment they should not be debarred. That is my main disagreement with the Bill, although I have others. The Minister is aware of that. Had he conceded that there was a case and agreed to meet that point, we would not have had to argue the Bill at such length

Mr. Ivan Lawrence: The hon. Gentleman is as concerned as everybody else with the issue of public confidence. Is that not the central point? Is he not arguing that the public will have confidence in a jury system that allows people to serve on juries when they have been convicted of crimes of dishonesty which often involve a complete discrediting of, or an attack upon, the police? Is it not difficult for public confidence to be reposed in anybody who will not convict anybody in any circumstances when the police have given evidence? Do not such persons frequently receive probation or community service orders? Is that not a question of public confidence, and is not that the main thrust of the hon. Gentleman's remarks?

Mr. Dubs: Of course, public confidence is the key issue, but until the hon. and learned Gentleman used that argument I was not aware that that issue attached itself directly to anyone who had served a probation or community service order.
I mentioned anecdotal evidence—I do not discourage it—of individuals who set out to acquit everyone. I have yet to hear of anyone who has served a community service or probation order being judged to have such an attitude. I am not sure that public confidence in the jury system has, in the past, been undermined by the knowledge that somebody five or eight years previously had served a community service or probation order. If that is the contention, it has not been argued in Committee or in the House.
The Morris report took that point to heart. In paragraphs 135 to 142 it stated:
We conclude that while it does not necessarily follow that all persons who have been convicted will lack the qualities needed in jurors, it is reasonable in the general interests of the community for some convicted persons to be disqualified. We now proceed to consider what should be the extent of this disqualification, and to whom it should apply…
We respectfully agree with this view"—
that is, the view of Lord Chief Justice, Lord Goddard, in what was called Kelly's case—
and we think that any disqualification should be as limited as is consistent with the proper administration of justice and the maintenance of public confidence in the jury system.

The Morris report did concern itself with public confidence, but said that disqualification should be as limited as possible, consistent with that aim and with having proper administration of justice. It stated:
We have come to the view that the criterion for disqualification should be conviction for an offence which has resulted in imprisonment or some other form of detention being imposed.
That conclusion took into account the points raised by the hon. and learned Gentleman.
If the hon. and learned Gentleman argues that matters have changed dramatically since 1965 when the report was published, so be it. But the points that he and other hon. Members have been making, if they have any validity, had that validity many years before the Morris report. That report is still the most authoritative report on the workings of the jury system. Its conclusions still have a great deal of merit. If some hon. Members argue that the conclusions do not still have some merit, they must show what has changed since the report was published

Mr. John Ryman: Has not my hon. Friend overlooked the fundamental fact that, after the Morris report, majority verdicts were introduced by the last Labour Government?

Mr. Dubs: The very fact that we have majority verdicts rather than unanimous verdicts is the answer to the charge that one person on a jury might not be sympathetic to the criminal justice system and might want to acquit all criminals. I understand that that is why majority verdicts were introduced. I am not against them—they are an additional safeguard against the problem we are discussing

Mr. Lawrence: The hon. Gentleman has not addressed himself to the point that the jury system is that much wider as a result of introducing anyone on the voting register. That is another factor that was not in the mind of the Morris committee

Mr. Dubs: It was in the mind of the Morris committee because it referred to that point in its report. Its conclusions were based on the system as it then was, but it took into account the suggested changes that have since been implemented significantly to widen the qualifications for serving on juries.
The Minister has said on several occasions, both in Committee and in the Chamber, that the Home Office has given its full blessing to the Bill because it fulfils a Conservative manifesto commitment. That was the answer to questions about why a Bill was not introduced by the Home Office which would have allowed us to deal more thoroughly with some of the omissions, which we do not intend to discuss today but which the Minister and the promoter conceded were serious matters for which they had no solution.
The Minister said that he had enormous support because the issue was in the manifesto, and the Conservatives have a huge majority in the House. Yet the Friday before last he managed to muster a grand total of 36 Members—of whom most, though not all, were on his side — to support the closure, which is to say, to support the Bill. Last Friday he succeeded in mustering only 24 Members plus two Tellers. That is a very small proportion of the alleged supporters. The Minister had been chiding the Opposition, saying that we did not have massive support for our criticisms of the Bill, but he was found out and


finished up with quite a bit of egg on his face. If the Government can muster only 26 Members to support a fundamental manifesto promise, one wonders what things are coming to

Mr. John Watson: I am reluctant to say anything that may give the hon. Gentleman fuel to continue his speech even longer. He accuses the Government of having insufficient support. Despite his protestations that there was widespread anxiety among the Opposition about the Bill, on the last two Fridays he has managed to muster a total vote of precisely nil. Will he explain that?

Mr. Dubs: The hon. Gentleman knows the answer to that as well as anyone. As he well knows, to carry the Closure requires 100 votes, so there is no purpose in the Opposition voting. Last week we merely sought to test whether there were 40 Members in the House to demonstrate the support that the promoter and the Minister claimed for the Bill. If we had gone into the Lobby, even to vote against the Bill—

Mr. Timothy Wood: On a point of order, Mr. Deputy Speaker. I hope that you will protect the rights of other hon. Members whose legislation has widespread support and encourage those taking part in this debate to proceed apace. Lengthy speeches related to the Bill are bad enough, but a discussion as to how many Members were present on various occasions does not help to progress private Members' legislation one iota

Mr. Deputy Speaker: I have been listening carefully. Unfortunately, it is usual on such occasions to make passing reference to the presence or absence of Members, but hon. Members should deal with the contents of the Bill

Mr. Dubs: I am absolutely with you on that, Mr. Deputy Speaker. I was tempted by the intervention of the hon. Member for Skipton and Ripon about numbers. I think that it is understood that the procedure used last week was a test of the support for the Bill, which proved to be inadequate

Mr. Brandon-Bravo: May I briefly offer another explanation?

Mr. Deputy-Speaker: Order. To pursue that further would be to get away from the contents of the Bill. I think that we should proceed

Mr. Dubs: It is my contention that the Bill has proved not to have the wide support claimed for it by the Minister and others.
The final point which concerns me a great deal has not been covered by the Minister or any other supporter of the Bill. The Bill makes no provision for enforcement. The answer may be that the same procedures will be used as in the present disqualification system. As the Bill greatly widens the disqualifications, however, it is difficult to know whether it will prove necessary to enforce the procedures by checking the eligibility of persons summoned for jury service. Because the disqualifications are so much wider, I believe that there will be pressure on those who administer the courts and the jury system to reconsider the enforcement procedures. It is regrettable

that the Bill contains no provisions about enforcement and that the Minister and his supporters have made no reference to it.
It was clearly stated in Committee that enforcement was a weakness in the Bill. The answer today may be that the present enforcement procedure will be used, which I believe merely involves the signing of a simple declaration, but I believe that pressure will mount for people called for jury service to be screened by the computers and criminal records systems at Scotland Yard and perhaps elsewhere. I do not say that that will necessarily happen, but it is a worrying possibility if the Bill is passed in its present form. I hope that the Minister will give assurances about how the Home Office intends that the legislation will be enforced if it goes through both Houses in its present form.
There have been many arguments in the past about the different but related issue of jury vetting. There have been attempts to exclude people from juries on the basis of their life styles because the prosecution thought that it would be harder to secure a conviction with such persons on the jury. There will certainly be pressure to vet jurors to ensure that they qualify. I am not even certain that the present law prohibits that. The very least that the House is entitled to demand is a clear statement from the Minister about how the legislation will be enforced. It is no longer a matter of answering the simple question, "Have you been imprisoned for five years or longer?" That is clear and explicit and catches a certain number of people. We are now dealing with something far less precise involving suspended sentences and community service orders and I am not at all sure that the present procedures will be regarded as adequate by people who fully support the details of the Bill. I hope that the Minister will give us some answers on that.
I do not wish to prolong my speech. I merely wish to explain our concern and to set the record straight. In case there is any doubt, I repeat that I am not interested in having crooks on juries, although there will always be some, even if the Bill is passed. I am concerned that the line has been drawn too widely so that people will be excluded by the Bill although no case has been made for their exclusion. I very much regret that the promoter and the Minister have not accepted our arguments on that.

Mr. John Ryman: Enough time has been spent on diversionary tactics calculated to obstruct the Bill's progress. The Opposition are anxious to assist in the administration of justice and the upholding of the rule of law. I find myself in a slight dilemma because, as the Minister and several hon. Members will know from my speeches on the Bill on previous occasions both in the House and in Committee, I strongly disagree with some of the arguments that have been advanced from my Front Bench. I have great respect for my hon. Friend the Member for Battersea (Mr. Dubs) but I must register my profound disagreement with him.
It is obvious to anybody familiar with the administration of justice in criminal courts today—the Crown courts, and the assizes and quarter sessions before the passing of the Courts Act 1971—that there is a serious problem of juries, for quite improper reasons, failing to convict on overwhelming evidence in certain types of cases. That problem has confronted those


involved in the administration of justice for many years. I welcome the Bill which, to a modest extent, seeks to deal with that problem.
As I have said in Committee, the Bill does not go far enough. I should like to see removed from jury service other categories of persons. But let me address myself shortly to the issues presented by the Bill. It is essential that judges, members of the Bar, solicitors and jurors have confidence in the administration of justice and that public confidence in it is in no way diminished. That is why the standards of the judiciary and both branches of the legal profession are very high. It makes nonsense of the system if we permit jurors to serve on juries whom we know may have a built-in bias and hostility to the administration of justice. It helps those who oppose jury trials and a considerable body of opinion in Britain does.
I am a great believer in the jury system. Juries have a lot of common sense. I should fight any suggestion against them, with the exception of big commercial frauds which are unsuitable for jury trials, but that is another subject completely. I understand that the Home Secretary is to appoint a high-powered committee to look into the question whether big commercial fraud cases should be tried by a High Court judge and two assessors. Subject to that, I am a strong believer in jury trials, provided that we take every reasonable step consistent with civil liberties to ensure that those who serve on juries are honest people doing their best to help in the administration of justice.
The argument about whether a person has been sentenced in the past, whether it be a sentence of imprisonment, probation, community service and so on, wholly misses the point. What matters is not the sentence that is imposed by the trial judge but the fact of the conviction. It is understandable that a defendant who is now eligible for jury service may have been properly treated with leniency and compassion by the trial judge but that is no reason to endanger the administration of justice by permitting such a person to serve on a jury.
The essence of the argument is that the administration of justice is jeopardised if trials have to be halted and juries discharged and one has to start all over again. Much public money and time is wasted and nobody is more prejudiced than the defendants who have to be re-tried

Mr. Dubs: I have listened with interest to my hon. Friend's arguments. Is he saying that he wishes that the Bill should also cover people who have had fines imposed upon them? If he is not, will he relate his argument to the inclusion in the list of people disqualified those who have received community service and probation orders?

Mr. Ryman: I shall not be distracted by yet another red herring. I fully understand my hon. Friend's concern in wishing to put forward the rehabilitation argument for persons previously convicted. Judging from the tenor of his speech today and on previous occasions, he believes that to be deprived of jury service would prejudice a person's rehabilitation. I fully understand that argument and have a good deal of sympathy for it. It is a serious matter to deprive a person of the right to serve on a jury, but it would not be helpful if I were to deal with each individual case that could arise in the way in which my hon. Friend has suggested.
May I deal with my hon. Friend's question in a general way? It is essential to the administration of justice that we have as many honest people on juries as possible. If we

find that there are people on juries who are not honest for various reasons, I support the will of Parliament in promoting any measure that can mitigate that to some extent. I fully agree that the line is a difficult one to draw. We are in the dilemma that on the one hand we want to do our best for the administration of justice and on the other hand we do not want to be too hard and lacking in compassion towards those who have been convicted in the distant past and who, after a reasonable period, should take their full place in society. I recognise that dilemma; it is a difficult one to deal with

Mr. Gerald Bermingham: Does my hon. Friend agree that there are more crimes for which a person can be put on probation or sent to prison than simply a crime of dishonesty? Is he suggesting that where a jury may have a formerly dishonest person on it that person should be removed? If he takes that line, surely there must be some distinction for people who have been convicted, perhaps in their youth, of a crime which did not involve dishonesty but which still carried a sentence of either imprisonment or probation

Mr. Ryman: That is a real difficulty, and my hon. Friend is right to make that point. But I would rather be safe than sorry. It may well be that an injustice will occur in the case of a person who should serve on a jury. But the honesty of the jury is of paramount importance. My hon. Friend has made a valid point. There may be a risk of unfairness in debarring certain people from jury service if the Bill is enacted in its present form, but I would rather have such an unfairness than risk a jury being tainted. If a jury is tainted, the repercussions are far greater. Far better that a dishonest individual is perhaps treated unfairly than that the trial dependent upon a jury should become abortive, the jury have to be discharged and the trial begun again, with all the unfairness that that involves for the witnesses and the defendant in the case.
This is a matter of common sense. Some of the arguments made by my hon. Friend on the Front Bench, while persuasively and attractively put—I pay a great tribute to the ingenuity of my hon. Friend the Member for Battersea—are an intellectual contortion and completely lacking in reality and common sense. I am bound to say that. I have unbounded admiration for my hon. Friend's skill as a forensic advocate, but what he says is nonsense. This subject is too serious to play about with. It is too serious a subject for attractive polemics on a Friday morning in the House of Commons. Enough time has been wasted. Filibustering, although a perfectly legitimate parliamentary device, is inappropriate in these circumstances. I would like the Bill to reach the statute book as soon as possible. It has my support.

Mr. John Watson: This will, I hope, be my final speech on the Juries (Disqualification) Bill. I am sure that my hon. Friends will share that hope. It would be inappropriate for the Third Reading to pass without a speech from the promoter of the Bill, but I shall be brief.
Several years ago I heard a magistrate in Leeds sentence an unfortunate accused to six months' imprisonment with the memorable words: "I do not know whether you are guilty or not. There is an element of doubt in your case,


but you are not getting the benefit of it. If you are guilty, you have got off lightly. If you are innocent, let it be a lesson to you."
As a parliamentary innocent, I have learnt one or two things during our protracted debates on the Bill. I have learnt to believe the hon. Member for Battersea (Mr. Dubs) when he says he believes strongly in certain issues and that he will therefore delay the passage of the legislation in the hope that some concessions will be forthcoming. When I was studying the British constitution at school, I learnt that the Opposition have no power to legislate but that they have the power to delay legislation. I can only say that that power rests in safe and competent hands when exercised by the hon. Member for Battersea.
I listened with interest two weeks ago when the hon. Member for Hammersmith (Mr. Soley) said that the Government were pandering to public opinion. He said that, because public opinion was in favour of the Bill, the Government were being weak in putting it forward. I have noted with regret that, whenever the Government do things that people want, they are accused by Opposition Members of pandering to public opinion, failing to give a lead and lacking in courage. When the Government do things that people do not want—as they sometimes do—they are accused of ignoring the people's wishes, political arrogance and neglecting the principles of democracy.
One of the great strengths of the Bill is that people want it. That is a positive fact. It is frequently assumed in the House that public opinion is a by-product of debate, but that is not so. Public opinion is a factor which needs to be taken into account in its own right in all debates. The fact that people outside the Chamber—and quite a large number of hon. Members as well — recognise the contents of the Bill in principle and practice makes it all the more necessary that it should be passed as it stands.
I have also learned to distrust some of the more intellectual arguments which can be marshalled against a Bill such as this. As the promoter of the Bill, I have received a relatively large number of letters about it. All but one were in favour. The letter opposing the Bill was written in an academic style, with footnotes and references. The English was flowing and impressive. However, the gist of the argument was that the jury should be a cross-section of society as a whole: society contains criminals, so no jury is complete unless somebody of dodgy character is sitting on it. I find that contention highly arguable. I am reminded of A. J. P. Taylor's observations of London of 20 years ago. He said:
I admire St. Paul's cathedral because it is an ugly building which we all unite in calling beautiful. I admire Brixton gaol because it contains the biggest collection of unsuccessful criminals in London, and I admire the House of Commons because it is the biggest collection of successful criminals in London.
We know that that is not true. We know that the public do not believe it to be true. I submit to the House that public confidence in this Chamber would be lowered rather than raised if there was a suspicion that such a contention might be true.
If we pass the Bill, we shall achieve three things. First, we shall have brought the law up to date. Since 1974, when the most recent effective juries legislation was passed, more short sentences have been passed, more

probation orders have been made, and community service orders and suspended sentences have effectively been introduced.
Secondly, we shall have done something marginal about interference with juries, or jury nobbling. It is only common sense that people on a jury who have been found guilty of a significant criminal offence are more likely to be influenced by those who wish to nobble the jury. They are more likely to be vulnerable to blackmail or to other forms of coercion, and less likely to have faith in the judicial system.
Thirdly, we shall have increased from 250,000 to 500,000 the number of people disqualified from jury service. In so doing we shall have removed the kind of people whose experiences have found their way into the newspapers over the past three or four years and have diminished public faith in the system. If by passing the Bill we can restore that faith, the House will have done the nation a service.

Mr. Harry Cohen: Mr. Deputy Speaker—

Mr. Brandon-Bravo: On a point of order, Mr. Deputy Speaker. The hon. Member for Leyton (Mr. Cohen) has already addressed the House on Third Reading. I did not like the content or the presentation of his speech, but that is by the way; once is enough

Mr. Deputy Speaker: Under the procedure of the House, we begin again this morning. The fact that the hon. Gentleman spoke last time that we debated this matter does not prevent him from speaking again

Mr. Cohen: Thank you, Mr. Deputy Speaker. I shall introduce some new material into my speech today, and there are important issues to be raised again.
This is the third week running that I have spoken on the Third Reading of the Bill. For a new Member that must be a record of some kind. Certainly it cannot have been done for a long time.
Precious few Conservative Members attended last week's debate. Although the Conservative party is supposed to be the party of law and order, Conservative Members did not show much concern about the Bill. The hon. Member for Eltham (Mr. Bottomley) said:
I shall make it my business to send to each person in my constituency who complains about burglaries, delays in trials or about any part of the criminal justice system some speeches by Opposition Members". — [Official Report, 30 March 1984; Vol. 57, c. 562.]
There is an implicit threat in that. I do not know about jury nobbling, but that sounds like an attempt to nobble Members of Parliament. I shall have to point out to any of the hon. Members who write to him that there was a dearth of Conservative Members present for the vote on the Bill. So much for the keenness and interest of Conservative Members.
My hon. Friend the Member for Blyth Valley (Mr. Ryman) has said that this matter is too serious for polemics. It is also too serious to be dealt with in terms of anecdotes. I have read in detail the record of the Committee stage, and I have been present for the debates in the Chamber, and I know that the fundamental basis of the arguments for the Bill has been a series of anecdotes.
I am not opposed to the jury system. I support the present jury system, and I do not want it to be undermined. That is the reason why I oppose the Bill. Parts of the Bill


would have the effect of undermining the jury system, because a broad cross-section of the community is needed if the jury system is to work, and the Bill would undermine that cross-section to a degree. For example, it will disqualify many youngsters who have had probation orders put on them. I support the present jury system and the present arrangements by which people who have committed serious offences are kept off juries —sentences for five years barring them for life, sentences for three months barring them for five years and imprisonment barring them for 10 years. I also support the arrangement which keeps the present jury system fair—the Crown and the defendant can challenge juries. They are fundamental powers which keep the jury system straight. In Committee the Minister said:
As to its general principles, the Bill strikes an appropriate balance in the interests of achieving the broadest consensus possible."—[Official Report, Standing CommitteeC, 7 March 1984; c. 9.]
If that is so, why did the Government not come to an agreement with Opposition Members about the minor matters in the Bill—such as probation? It was suggested that people's civil rights should be restored 12 months after they had completed a probation order. However, the Minister and the hon. Member for Skipton and Ripon (Mr. Watson) were not interested in that type of broad consensus. That gives the lie to the Minister's comments in Committee.
Much anecdotal evidence has been given in support of the Bill and we have had more today. Analysis reveals some interesting features. For example, the Minister quoted an article in the Daily Mail. As I pointed out in an earlier debate, there was a report in The Timesof 25 February which said that the Daily Mail led on the juror. The chap concerned found himself selected for jury service, filled in the form incorrectly, went to a citizens advice bureau and then the press to see what he could do and the Daily Mail led him on and told him to keep on the jury so that it could get a good story afterwards

Mr. Brandon-Bravo: The hon. Gentleman promised the House fresh stuff but this is precisely the same speech he has made twice before

Mr. Cohen: This speech if a mixture of fresh stuff and what I have said before. This is an important point which bears repeating. The Minister also quoted the case of "Mickey the Fish" Roche and The Sunas his source. That is an excellent basis for his case. "Mickey the Fish" had 10 convictions for burglary, was on a suspended sentence but ended up on the jury. The fault there lies not with the system but with the courts. The Minister cannot reasonably quote that case in support of his argument.
There are a few exceptional examples but they cannot be used for making the rules. Of course people will slip through the net—they will continue to do so if the Bill is passed. I refer the House to an exchange in Committee between the hon. Member for Skipton and Ripon and my hon. Friend the Member for Blyth Valley. The hon. Member for Skipton and Ripon said:
Will not the hon. Gentleman acknowledge that if the potential juror scrutinised the document wrongly, made a mistake and filled in the form on that basis he would thereby have committed a criminal offence?

Mr. Ryman: No, because de minimis lex—if there were a misunderstanding, whether or not there was a technical offence, prosecuting authorities would use common sense and discretion,

no proceedings would be taken against a potential juror in those circumstances."—[Official Report, Standing CommitteeC, 7 March 1984; c. 8].
People could still make a mistake but it would not be a criminal offence.
I shall not delay the House much longer but there are some important points that I should like to make. One concerns jury nobbling. It is a serious offence in some circumstances but it is up to the Government to tackle the problem, if they perceive it as such, head on. Why do they not introduce stiffer sentences for jury nobbling? Why do they not use their own time to achieve that, rather than go via the back door of a private Members' Bill with all the vagaries and problems associated with it? They are supposed to be the law and order Government. Jury nobbling is a false reason for the Bill as jury nobbling will still continue. All we are doing is imposing another draconian restriction on civil rights. [Interruption.] The main thrust of my opposition to the Bill—

Mr. Ryman: On a point of order, Mr. Deputy Speaker. Could you please rule that it is grossly unfair and improper for Conservative Members to barrack my hon. Friend and to talk loudly to distract attention from his speech because, although I happen to disagree with it, he should be given a fair hearing?

The Lords Commissioner to the Treasury (Mr. Tristan Garel-Jones): He has had one, and this is the same speech as before

Mr. Deputy Speaker: It is my duty to uphold the Standing Orders of the House and I try to do that. It is not for me to give judgment

Mr. Cohen: The Government Whip said that this is the same speech but it is not, because most of my earlier remarks concerned extending the exclusion to people who have undergone probation orders, community service orders and suspended sentences. In this speech I have taken up some of the important discrepancies that have cropped up in debate in the House. I am also dealing with the anecdotal evidence that has been given in support of the Bill. I should have thought that it was important to do that.
The crux of my argument is that the Bill extends disqualification to people who have undergone probation orders, community service orders and suspended sentences. That is quite wrong. The Minister said in Committee that the need for that extension made the Bill necessary. The present arrangements for juries were introduced in 1974. Suspended sentences were introduced in 1967 so there was nothing new about them when the Juries Act 1974 was introduced. The community service order was introduced in 1972, again before the 1974 Act

Mr. Mellor: I am sorry that I have been tempted by the hon. Gentleman, who is plumbing new depths of irrelevance and inaccuracy in his further attempts to delight the House. As he should know, the 1974 Act is a continuation of previously agreed matters introduced in the 1960s following the Morris report

Mr. Cohen: But the 1974 Act came before the House in 1974, while community service orders were introduced in 1972 and suspended sentences in 1967, so they must have been known when the 1974 Act was debated. Perhaps the 1974 Act was altered to take into account that knowledge.
A suspended sentence is given by the court because it finds good reason for not sending somebody to prison. The same good reason applies for not putting that person in the same category as prisoners for jury disqualification, but the Bill is seeking to do that and must be wrong.
By extending the Bill to probationers, we are taking in many minor offenders, and taking away civil rights unnecessarily and for an excessive amount of time. I shall not repeat the arguments that I made last week, but the Bill is aimed at youngsters and there is no recognition of rehabilitation for those serving time on a probation order. The hon. Member for Skipton and Ripon said in a previous debate that six out of 10 probationers are found guilty of a subsequent offence. He is finding them guilty before they have even committed a subsequent offence by disqualifying them under the Bill. Effectively, he is penalising them twice — once in the court, and for the second time through the Bill.
For those reasons, and particularly because the Bill extends the disqualification to probationers and is a harsh and excessive period of disqualification, I still think that there are parts of this Bill that are very wrong.

Mr. Gerald Bermingham: I shall make only a brief speech to show why I disagree with the Bill. I support and uphold the concept of keeping juries untainted. However, I point out to my hon. Friend the Member for Blyth Valley (Mr. Ryman) that one begins to walk down a dangerous path, which I hope that the House will not follow, if one says that certain cases should not have jury trials. Perhaps he should reconsider his views on that, although I know about commercial fraud cases
My opposition to the Bill is based simply on the point that I made to my hon. Friend the Member for Blyth Valley. It is a blanket Bill. If one has been to prison one is barred from jury service for 10 years, and that bar applies even to one who has been sent to prison, a detention centre or Borstal for non-dishonest matters. In that respect, the Bill is badly drawn and I hope that their Lordships, when it reaches the other place, will take that point on board.
Many a youngster gets into a scrap at the age of 17, in a fight that will arise more from drink than dishonesty, and he may get a short custodial sentence. Are we going to say to that young man, who has always been honest up till then, and has not committed an offence of dishonesty, that he is to be barred for 10 years for jury service? That must not be the intention behind the Bill. By all means, we should keep the habitual criminal and the habitually dishonest person off juries. I welcome and support that, and there are ways in which juries can be challenged. However, young people occasionally do silly things for which they are incarcerated or put on probation, but which are not offences of dishonesty. Perhaps the Bill could be looked at again with a little more care, and not so blandly, in the other place.
The Bill is extremely brief and its brevity is its problem, because it does not differentiate between different types of offences. In the point that has been made by many others, it encompasses the person put on probation for a non-imprisonable offence, and that is ridiculous. I maintain my opposition to the Bill on the point that it is badly drafted, and that probably in the long term does more harm than good. In any society one has to maintain the balance between the rights of the individuals and the rights of society. We should continue to keep the habitual criminal off the jury, but we should not retard the rehabilitation of he who is not dishonest but has been merely stupid when young.

Question put, That the Bill be now read the Third time:—

The House divided:Ayes 46, Noes 0.

Division No. 234]
[10 45 am


AYES


Biggs-Davison, Sir John
Knight, Gregory (Derby N)


Bonsor, Sir Nicholas
Lang, Ian


Boscawen, Hon Robert
Lawrence, Ivan


Bottomley, Peter
Lloyd, Peter, (Fareham)


Bowden, Gerald (Dulwich)
Lyell, Nicholas


Brooke, Hon Peter
MacKay, John (Argyll &amp; Bute)


Cope, John
Mates, Michael


Crouch, David
Mellor, David


du Cann, Rt Hon Edward
Rhodes James, Robert


Forth, Eric
Sayeed, Jonathan


Fox, Marcus
Sims, Roger


Fraser, Peter (Angus East)
Smith, Tim (Beaconsfield)


Gale, Roger
Thompson, Donald (Calder V)


Garel-Jones, Tristan
Thompson, Patrick (N'ich N)


Gilmour, Rt Hon Sir Ian
Thorne, Neil (Ilford S)


Goodhart, Sir Philip
Townsend, Cyril D. (B'heath)


Grant, Sir Anthony
Tracey, Richard


Greenway, Harry
Twinn, Dr Ian


Henderson, Barry
Watson, John


Howarth, Alan (Stratf'd-on-A)
Watts, John


Howell, Rt Hon D. (G'ldford)
Wood, Timothy


Hunt, David (Wirral)



Joseph, Rt Hon Sir Keith
Tellers for the Ayes:


Kennedy, Charles
Mr. Gary Waller and Mr. Martin M. Brandon-Bravo.


Kershaw, Sir Anthony





NOES


Nil


Tellers for the Noes:



Mr. Harry Cohen and Mr. Gerald Bermingham.

Question accordingly agreed to.

Bill read the Third time, and passed.

Orders of the Day — Betting Gaming and Lotteries (Amendment) (No. 2) Bill (changed from Specified Premises (Improvement) Bill)

As amended (in the Standing Committee), considered.

Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 58 (Third Reading), and agreed to.

Bill accordingly read the Third time, and passed.

Orders of the Day — Child Abduction Bill

Not amended (in the Standing Committee), further considered.

Clause 1

OFFENCE OF ABDUCTION OF CHILD BY PARENT ETC

Mr. Timothy Wood: I beg to move amendment No. 1, in page 1, line 5, leave out 'subsection (5)' and insert 'subsections (5) and (7)'

Mr. Deputy Speaker (Mr. Ernest Armstrong): With this it will be convenient to take the following amendments: No. 3, in page 2, line 45, at end insert—
'(7) This section shall have effect subject to the provisions of the Schedule to this Act in relation to a child who is in the care of a local authority or voluntary organisation or who is committed to a place of safety or who is the subject of custodianship proceedings or proceedings or an order relating to adoption.'

No. 4, a new schedule—Modifications of Section 1 for Children in Certain Cases—

"Children in care of local authorities and voluntary organizations

1.—(l) This paragraph applies in the case of a child who is in the care of a local authority or voluntary organisation in England or Wales.

(2) Where this paragraph applies, section 1 of this Act shall have effect as if—

(a) the reference in subsection (1) to the appropriate consent were a reference to the consent of the local authority or voluntary organisation in whose care the child is; and
(b) subsections (3) to (5A) were omitted.

Children in places of safety

2.—(1) This paragraph applies in the case of a child who is committed to a place of safety in England or Wales in pursuance of—

(a) section 40 of the Children and Young Persons Act 1933; or
(b) section 43 of the Adoption Act 1958; or
(c) section 2(5) or (10), 16(3) or 28(1) or (4) of the Children and Young Persons Act 1969; or
(d) section 12 of the Foster Children Act 1980.

(2) Where this paragraph applies, section (1) of this Act shall have effect as if—

(a) the reference in subsection (1) to the appropriate consent were a reference to the leave of any magistrates' court acting for the area in which the place of safety is; and
(b) subsections (3) to (5A) were omitted.

Adoption and custodianship

3.—(1) This paragraph applies in the case of a child—

(a) who is the subject of an order under section 14 of the Children Act 1975 freeing him for adoption; or
(b) who is the subject of a pending application for such an order; or
(c) who is the subject of a pending application for an adoption order; or
(d) who is the subject of an order under section 25 of the Children Act 1975 or section 53 of the Adoption Act 1958 relating to adoption abroad or of a pending application for such an order; or
(e) who is the subject of a pending application for a custodianship order.

(2) Where this paragraph applies, section 1 of this Act shall have effect as if—

(a) the reference in subsection (1) to the appropriate consent were a reference—

(i) in a case within sub-paragraph (1)(a) above, to the consent of the adoption agency which made the application for the order or, if the parental rights and duties in respect of the child have been transferred from that agency to another

agency by an order under section 23 of the Children Act 1975, to the consent of that other agency;
(ii) in a case within sub-paragraph (1)(b), (c) or (e) above, to the leave of the court to which the application was made; and
(iii) in a case within sub-paragrah (1)(d) above, to the leave of the court which made the order or, as the case may be, to which the application was made: and

(b) subsections (3) to (5A) were omitted.

Cases within paragraphs 1 and 3

4. In the case of a child falling within both paragraph 1 and paragraph 3 above, the provisions of paragraph 3 shall apply to the exclusion of those in paragraph 1.

Interpretation

5.—(1) In this Schedule—

(a) subject to sub-paragraph (2) below, "adoption agency" has the same meaning as in section 1 of the Children Act 1975;
(b) "adoption order" means an order under section 8(1) of that Act;
(c) "custodianship order" has the same meaning as in Part H of that Act; and
(d) "local authority" and "voluntary organisation" have the same meanings as in section 87 of the Child Care Act 1980.

(2) Until the coming into force of section 1 of the Children Act 1975, for the words "adoption agency" in this Schedule there shall be substituted "approved adoption society or local authority"; and in this Schedule "approved adoption society" means an adoption society approved under Part I of that Act.

(3) In paragraph 3(1) above references to an order or to an application for an order are references to an order made by, or to an application to, a court in England or Wales.

(4) Paragraph 3(2) above shall be construed as if the references to the court included, in any case where the court is a magistrates' court, a reference to any magistrates' court acting for the same petty sessions area as that court."

Mr. Wood: In Committee mention was made of children in the care of local authorities and voluntary organisations, and the hope was expressed that the provisions of the Bill could be extended to cover that group. Amendments Nos. 1, 3 and 4 amend clause 1 and introduce a new schedule to achieve that aim. They will provide protection not only to children in care but to children who are subject to place of safety orders and those who have reached certain stages in custodianship and adoption proceedings.
Amendments Nos. 1 and 3 insert a new subsection (7) into the Bill, which makes the categories of children whom I have just mentioned subject to the provisions of the Bill. Those categories are important, and I should like to outline details of the children concerned.
The largest group covered by amendments Nos. 1 and 3 are children who are in care. We are talking about children for whom parental rights have been vested in a local authority or voluntary organisation, children committed to the care of a local authority as a result of other proceedings such as wardship or matrimonial proceedings and children in voluntary care where restrictions exist on their removal from care.
Many hon. Members will be aware of the unfortunate circumstances in which some children are committed to care. For example, the Children and Young Persons Act 1963, under which the highest proportion of children are committed to care, requires that the following grounds are satisfied: his proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated; or it is probable that that condition will be satisfied in his case, having regard to the fact that the court or another court has


found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs; or he is exposed to moral danger; or he is beyond the control of his parent or guardian; or he is of compulsory school age within the meaning of the Education Act 1944 and is not receiving efficient full-time education suitable to his age, ability and aptitude; or he is guilty of an offence, excluding homicide; and also that he is in need of care or control which he is unlikely to receive unless the court makes an order under that section in respect of him. In situations where those conditions are satisfied, a court has a variety of orders which it can make, including a care order placing the child in the care of a local authority.
11 am
For the year ending March 1981, just over 46,000 children in England and Wales were in care on the grounds that the conditions I have mentioned were satisfied. Many other avenues exist by which children are committed to care but the numbers involved are small and I do not propose to go through them.
Another category of children provided for by the amendments are those who are subject to place of safety orders. A place of safety order is an emergency arrangement for the removal of a child from its home surroundings in circumstances where the child is being ill-treated or neglected. A place of safety order can be made only by a magistrate or a magistrates court, and it expires automatically. The order can be for up to 28 days. Approximately 6,600 place of safety orders were made in England and Wales in the year ending 31 March 1981.
One other category of children who will be covered by the Bill as a result of amendments Nos. 1 and 3 are those who are subject to custodianship proceedings. Hon. Members may be less familiar with those proceedings, for they are provided for in section 33 of the Children Act 1975, which is not due to be implemented until the end of this year.
A custodianship order will vest the legal custody of a child in the persons caring for him on a long-term basis. It is expected that most applicants will be step-parents — living with the natural parent— and local authority foster parents. Those people do not at present have in law the same parental responsibilities or duties towards the child as a natural parent, although in fact they are acting as parents on everyday matters. It is estimated that there are about 10,000 children aged 12 and under who have been boarded out by local authorities. Many of those children could benefit from custodianship.
The last category of children who will be affected by the amendments are those involved in adoption proceedings. Hon. Members may know something of the procedure by which an adoption order may be made vesting in the adopters the parental rights and 'duties relating to a child. By such an order the existing parental rights and duties and financial obligations of natural parents are extinguished. As a result of those proceedings, over 10,000 adoption orders were made in 1982.
In the area of adoption, new arrangements, in addition to those operating in respect of adoption orders, will be introduced with effect from 27 May this year. These "freeing for adoption" provisions, which are contained in section 14 of the Children Act 1975, will enable an

adoption agency to apply to a court for an order freeing a child for adoption, with the effect that the parental rights and duties are transferred to the agency. The agency will be able to plan a child's future with greater certainty once a freeing order is made, and the child can then be placed with prospective adopters in the knowledge that the question of parental agreement has already been resolved.
Having set out the new groups of children who will be encompassed by the Bill, I will explain the consent arrangements appropriate to them.
Amendment No. 4 provides for a new schedule to be added to the Bill. The schedule outlines the arrangements required to ensure that "appropriate consent" to the taking or removal of a child out of the United Kingdom is clearly defined.
Amendment No. 4 will ensure that appropriate consent to the taking or sending of a child out of the United Kingdom will come from a local authority or voluntary organisation where the child is in its care; any magistrates court in the area where the child is committed to a place of safety; an adoption agency which made an application for a freeing for adoption order where an order has been made, or another agency holding transferred parental rights as the result of an order; a court to which an application has been made for a freeing for adoption order, or custodianship order; and, finally, a court which has made an order relating to adoption abroad or to which an application for such an order has been made.
I appreciate that I have spoken at some length on amendments Nos. 1, 3 and 4, but I hope that hon. Members will acknowledge that I have had much ground to cover in a complex area of child care legislation. I hope that in doing so I have convinced the House of the need for the amendments

Mr. Nicholas Lyell (Mid-Bedfordshire): I am glad to support the amendments because they fill what might in numbers have been a small gap but in human suffering is a very important gap in the Bill to date, because they concentrate, above all, on children in circumstances in which they are really at risk.
We are considering the addition of three categories. The first is where children are taken into the care of the local authority, usually after magistrates court proceedings. The second is where children are initially placed voluntarily in the care of the local authority but where the local authority then has to take the steps which are open to it under existing legislation to prevent their being removed. Those circumstances can be highly contentious and can lead to a wish from the parent or guardian to do something drastic and foolish in relation to the child, which may be very damaging to the child's interests and to the interests of another parent or guardian. The classic method now, with such ease of travel, is to take children abroad.
The third category is the place of safety order. A place of safety order is put into effect in relation to a child only if it is thought that there is urgent need to bring the situation under control for 28 days while getting a more permanent order. It is exactly during those 28 days that the parent or guardian, or whoever it may be, may be tempted to remove the child from jurisiction altogether in order to prevent the wise effects of the existing legislation. Custodianship proceedings fall equally well into that category, and so, in a small minority of cases, do adoption proceedings.
One is happy to be able to say that most adoptions proceed amicably, but not all of them do. In any case which might be described as a "tug of love", people are moved to do things which, on more careful reflection, they would realise were very foolish and could be very damaging to the child whom they purport to love. One of the things that such people seek to do is to buy a ticket for themselves and the child, get on to a boat or an aeroplane, and go abroad. It would be a great pity if this excellent Bill were to get on the statute book having omitted the three or four circumstances in which children are likely to be particularly at risk.
I congratulate my hon. Friend the Member for Stevenage (Mr. Wood) on tabling the amendments and preparing the ground for them, and I thank the Home Office for its assistance in that respect. I am sure that the amendments embody what the Criminal Law Revision Committee, in its careful work, wished to see embodied in the legislation. I give my strong support to the amendments

Mr. Roger Gale: I seek clarification on one issue that is of some concern to me. It relates to the position of a child in the custody of a local authority.
Over the past few months I have experienced some disquiet over the manner in which children are held in the custody of a local authority, sometimes for very long periods. I have in mind a case involving two parents, my constituents. As I have not had the opportunity to discuss the matter with them, I shall not name them. Their child has been in custody for about four years and has been placed with foster parents. It is a sad fact—I believe that the authorities acknowledge it—that in this case the pressures in the family have led to circumstances in which it is now possible for the local authority to say that the child has been fostered for so long that it has come to regard the foster parents as its natural parents, and that therefore it would be improper, in the child's best interest, to return it to its natural parent. I accept that final decision, because it has been taken, but the circumstances leading up to it are the fault of the local authority.
I raise this matter today, and ask for clarification about it, because I can envisage a situation in which a local authority, considering the possibility of releasing a child from a care order back into the care of the two natural parents—and in the knowledge that those parents might be considering taking the child abroad—might feel that it was not in the child's best interests to allow that situation to develop and might, therefore, continue to hold the child in care for longer than it would otherwise have done.
That might be regarded as a natural caution on the part of the local authority, but I should hate us to create a situation in which an authority might exercise over-caution and deny what in my view are the proper rights of natural parents.

Sir Nicholas Bonsor: I wish to add to the remarks of my hon. Friend the Member for Thanet, North (Mr. Gale) regarding the rights of foster parents and others who have had the custodianship of a child by, as it were, the grace and favour of the local authority. I share his concern for some of the ways in which some local authorities exercise their discretion regarding, in particular, the relationship between foster parents and the children whom they foster.
While it is outside the scope of this measure to look again at that relationship, I hope that the Minister will bear

in mind the need to strengthen the position of foster parents as against the local authorities which have the ultimate control of the children in their care.
I welcome the amendment because it is important that adequate powers are vested in local authorities, provided that they are properly exercised, to ensure that the children in their care are not removed abroad. As my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) said, the most contentious of all areas with which the Bill is likely to deal is the battle that may occur between the local authority and the people who otherwise would have the care and control of children.
It would have been singularly unfortunate if the powers which the Bill vests in the courts to prevent children from being taken abroad by one or other parent, or by somebody else who should not do so, were not extended to cover the instances of children in the care of local authorities.

The Under-Secretary of State for the Home Department (Mr. David Mellor): I crave the indulgence of the House to comment on the generality of the Bill. By the courtesy of the House, so that it should make progress, it was given an unopposed Second Reading. Because it is an important measure, I wish to use this first occasion on its return to the Floor of the House to put on record why the Government give the Bill a warm welcome.
It would be inappropriate not to say how grateful the whole House should be to my hon. Friend the Member for Stevenage (Mr. Wood) for bringing forward the Bill and for working so hard on it. The hon. Member for Battersea (Mr. Dubs) will join me in that because, although we have had our differences on the Juries (Disqualification) Bill, he and his hon. Friends have been most helpful on this measure, and I hope that he is pleased that some of the points that Opposition Members raised in Committee have been incorporated in the amendments that are now before the House. Peace has broken out this Friday morning, as is only appropriate.
11.15 am
My hon. Friend the Member for Stevenage has done extremely well because it is easy, when one is invited to bring forward a private Member's Bill, to turn to a small area for limited change—and there are, plainly, limited changes that are valuable. There are, however, larger issues that sometimes need to be grasped. The problem of child abduction is one of the more troubling social problems that we have faced, and in taking on the Bill my hon. Friend has addressed his mind to an issue that has caused a great deal of distress.
Happily, child abduction cases are not frequent. Most families in Britain can go through the whole of their lives without any untoward incident taking place. But in an age when more people are marrying nationals of other countries and when we must, I fear, accept that many more marriages are breaking down, the problems of a parent being left in one country with children and the estranged parent living perhaps halfway across the globe, and not being content with the situation that has been decreed by the British court, can, and often do, lead to trouble.
My hon. Friend the Member for Keighley (Mr. Waller), who has taken a great interest in the measure and who advises one of the groups of parents who have banded together for self-help, because they have lost children in this way, spoke movingly in Committee of the distress that is caused.
Nothing that this House can do can prevent a determined and ruthless parent, either by force or by subterfuge, taking a child out of the lawful custody of a parent domiciled here and taking it overseas, either back to the other parent's address overseas or, as has happened in some cases, to the address of a British parent who has gone to work abroad for the sole purpose of taking a child overseas.
Nor, though we strive mightily to do so, is it possible always to enforce British custody orders effectively in overseas jurisdictions. A great deal of advance has been made. Successive Law Officers and Ministers in successive Governments have made real efforts to do that. But it is not easy, and the problem is compounded by the fact that the criminal law is inadequate and anomalous. As a result of that, it is difficult at present for the police to intervene effectively to prevent an estranged parent who has stolen a child from leaving the country.
Although in some cases a child can be abducted and the errant parent can be on the aeroplane within hours, there are some other distressing cases. My hon. Friend the Member for Keighley mentioned one, when it was a matter of days before the child was actually removed from the jurisdiction, and because of the inadequacies of the present law the former wife was not able to obtain the effective assistance from the police to which she felt she was entitled, assistance which, all other things being equal, the police would have wished to have given.
Therefore, while a change in the law cannot deal either with the desperate inclination of some parents to abduct their children, or with the difficulties — if that is successfully done — of getting the child back from another jurisdiction, it can ensure that there is an effective and modern framework of law to deter that by providing appropriate penalties for what is a wicked offence.
However much an estranged parent may love a child, one can think of nothing more wicked than taking a child away, usually from the mother's care, at a very early age to a country in which, in all probability, the child has had no previous background and away from his or her friends. I should have thought that, while one understands the strength of parental feeling, that was a damaging way in which to deal with such a situation. The courts, in granting custody, say that the welfare of the child is paramount, whereas the child abductor says that his welfare is paramount, and that is what is so unacceptable

Mr. Lyell: I have been pondering on the amendments. I should be grateful if my hon. Friend could say whether they will apply to children who are taken into the care of local authorities in Scotland or in Northern Ireland. I am a little worried that there may be a lacuna in the Bill in that it may be possible to abduct children in England and take them to Scotland or to Northern Ireland and somehow not fall within the ambit of the Bill. I raise this matter because I have personal experience of cases where children have been abducted and taken to Scotland, and these days it is easy to fly from Scotland to almost any part of the world

Mr. Mellor: My hon. and learned Friend can be reassured on one aspect of his concern. We hope that subsequent amendments that we shall be considering later will close most of the loopholes involving Scotland. However, there is a problem with children in care in Scotland. That will remain a slight loophole because the

law in Scotland relating to such children is different. I understand that this is one of the matters with which my hon. Friend from the Scottish Office will be dealing. I do not want to give an inadequate answer to a question with which he will deal more adequately later. To tie up any of the residual differences between England and Scotland, it is the intention of my right hon. Friend the Secretary of State for Scotland to refer these matters to the Scottish Law Commission.
The Bill is designed to put a deterrent in the way of a parent who seeks to take his child by force from his or her estranged partner. It recognises that that is a social evil. The Bill makes it a criminal offence punishable by seven years' imprisonment and gives the police the powers that they need to act swiftly.
There are other issues that need to be addressed. One issue specifically addressed in the amendments concerns children in the care of local authorities. The hon. Member for Battersea raised that matter in Committee. It seemed to me then that it had force. It had seemed to us before that that action was needed. We have had lengthy consultations with my right hon. Friend the Secretary of State for Social Services and, as a result, these amendments have been drafted. I shall hope to show later that they are worthy of support.
It is also worth reminding the House that it is not just estranged parents who try to interfere with small children. I fear that there are others who also take a delight in doing it. When that interference is in a direct sexual sense—lamentably a number of those incidents come to our notice every year—there are specific criminal offences to deal with it. But it has been distressingly apparent over the years that sometimes people take children for no good reason. They do no actual criminal harm to them, but there is no doubt that such actions are wholly improper and plainly against the interests of the community and damaging to the children involved even if they are not physically or sexually harmed. The criminal law should be clearer about what remedies are provided to prevent that, and the Bill addresses its mind to it.
Even more important, the Bill addresses its mind to the most sinister manifestation—what may be termed the third party intervention where the estranged parent hires a gang of thugs to carry out the abduction. That is perhaps the most wicked aspect, and I am delighted to see that my hon. Friend has dealt effectively with it. His Bill will comprehensively replace a mass of outdated legislation.
It is a pleasure always to see my hon. Friend the Member for Cambridge (Mr. Rhodes James) in his place. It was a great sadness to many of us that his efforts in the last Session to do much the same as my hon. Friend the Member for Stevenage were not successful. But I am delighted that he is here to lend his support to the Bill. His presence is a token of his continuing interest in this problem. My hon. Friend the Member for Cambridge blazed a trail that my hon. Friend the Member for Stevenage has followed, and it is appropriate that he is here to make his contribution to the debate.
The problems that my hon. Friend the Member for Stevenage seeks to remedy are worthy of a few minutes' attention, so that people who are not otherwise familiar with this complicated and arcane area of the law may know exactly the debt of gratitude that we shall owe my hon. Friend if the House approves his Bill.
The aspect of the law that we are considering has been a source of worry to successive Governments, and the


Criminal Law Revision Committee was invited to consider it and to make its recommendations. My hon. Friend's Bill follows the report of the Criminal Law Revision Committee and makes one or two important additions to it, to which I shall come in a moment. I know that my hon. Friend wishes to join me in paying tribute to Lord Justice Lawton, the chairman of the committee, who has been of invaluable assistance in ensuring that the Bill could be looked at by an experienced eye. I cannot think of a more experienced legal eye currently active. He ensured that proper account was taken of the time that had elapsed since the report and of one or two significant cases, especially that of Regina v. D., which needed to be considered. He recognised generously that there were points where the draft Bill which the Criminal Law Revision Committee appended to its report was in some respects not the only way in which the provisions that the committee wanted to see could be drafted.
Lord Justice Lawton also played a part in vetting some of the changes that my hon. Friend sought to make in the interests of clarity. My hon. Friend has drawn an important distinction so that there are separate offences for those committing the offence who are connected with the children — the estranged parents — and for the mercenaries and others. The estranged parents find their place in clause 1. The mercenaries and others find their place in clause 2. That assists clarity, because the issues involved in each offence may be different even though both are serious.
When the Criminal Law Revision Committee looked at the present state of the law it exposed how vague and anomalous it was. That is inevitable, bearing in mind that the offences that we have to protect children against abduction at the moment are three principal ones, two of which are lost in the mists of time and the common law and one dating back to an Act of 1861.
False imprisonment is an old-established common law offence punishable with life imprisonment and is committed where a person unlawfully and intentionally or recklessly restrains another's freedom of movement from a particular place. That is a fundamental protection that we all enjoy. It does not apply just to children. But it has now fallen very largely into disuse. The Criminal Law Revision Committee revealed that in 1977 there were 12 prosecutions and in 1978 only two. Far from being an effective safeguard for children at risk, it is fair to say that false imprisonment has become very much an offence of the past, although it remains on the statute book and can be used from time to time.
Kidnapping is a common law offence punishable with life imprisonment, and was defined a long time ago in East's "Pleas of the Crown":
The most aggravated species of false prisonment is the stealing and carrying away or secreting of some person, sometimes called kidnapping, which is an offence of common law,
That remains the definition. However, as I shall show later, one of the points with which my hon. Friend has had to come to terms is the fact that the common law offence of kidnapping is not as wide as previously thought. The contentious case of Regina v. D., which, as I said in Committee, threw a rather large cat among the pigeons as to the effective use of kidnapping in the context of child abducting by a parent, requires some correction, and that is dealt with in the Bill.
11.30 am
Finally, and perhaps most important, the principal safeguard in today's law against child abduction is the offence of child stealing under section 56 of the Offences Against the Person Act, 1861. That offence, on the face of it, appears to cover the points that all of us have in mind, and about which we are concerned. Under section 56, it is an offence, called child stealing, for a person to abduct by force or fraud a child under the age of 14 with intent to deprive any parent, guardian or other person having the lawful care or charge of the child, of the possession of the child. However, by a proviso to that section,
no person who shall have claimed any right to the possession of such child, or shall be the mother or shall have claimed to be the father of an illegitimate child, shall be liable to be prosecuted
for an offence under the section. Thus it cannot be an offence under the section for one parent to abduct a child from another, even where the court has granted lawful custody of the child to the latter. That is why, notwithstanding that there has been an adjudication with the due solemnity of the High Court of the country, it is so difficult, if a parent chooses to take the law into his own hands and to take the child away by force, having lost in the High Court, for the authorities to do all that they would want to do under the present law.
The Criminal Law Revision Committee in 1980 recommended, therefore, that section 56 of the 1861 Act be replaced by new provisions, which, among other things, would extend the criminal law to parents who abduct their children with the intention of taking them out of the realm. The committee's reasoning, which it is worth putting on the record, because it was as cogent as the committee's recommendations usually are, was:
If the child is taken by a parent who does not intend to leave the country … this is best dealt with by courts having family jurisdiction as a breach of a court order and not by the criminal courts.
I think that my hon. Friend agrees with that, and so would the whole House. No one wants to make the criminal law intrude into any part of the civil law more than it has to. Where the civil courts have jurisdiction, there is no problem. However, the committee continued:
However, the law does need to be able to act quickly if a parent abducts his child with the intention of taking him out of the country without the consent of the other spouse. Such situations cause severe distress to those having lawful control and, once the child has left the jurisdiction, obtaining his return is costly, usually slow and on occasions, impossible.
I think that that was well put.
I come next to the heart of the Bill, clauses 1 and 2. Clause 1 gives effect to the substance of the committee's recommendations by making it an offence for a person connected with a child to take or send him out of the country in certain circumstances, and, of course, defines those who are connected with the child to be the child's parents, his guardian or other person with custody of the child under an order made by a court in England or Wales and, in the case of an illegitimate child, a man in respect of whom there are reasonable grounds for believing that he is the child's father. That offence is here included, with the anomalies removed, not the least of them the unfortunate implications of the case of Regina v D. where the Court of Appeal held that a parent cannot be convicted of kidnapping his child, even if force is used, if the child is under 16 or, if unmarried, under 18. That is why my hon. Friend has thought it right to increase the age limit of 14 years in clause 1(1) provided for in the Criminal Law


Revision Committee's draft Bill to 16 years, to ensure that the unfortunate effect, as so many see it, of the restriction of the law of kidnapping in the case of a parent consequent upon Regina v D. is corrected, and that statutory protection is given to children over the age of 14. I believe that I would take the House with me in saying that there are cases where someone may be on the verge of adulthood, 14 or 15, who is still entitled, as a minor, to the protection of the courts, and to criminal sanctions as well as purely civil ones.
Clause 2 of the Bill deals with those others with no connection with the child, as defined in clause 1, who interfere with a child. It will cover the wretched mercenaries about whom I have already said my piece. It also corrects another genuine omission from section 56 of the Offences Against the Person Act 1861, because that section is unduly narrow, in that it is confined to the taking or enticing of a child only where force or fraud is present. There are doubts in the subsequent case law about whether a person who interferes with the possessory relationship between a parent and a child can be convicted, unless the interference is substantial. That is why the Criminal Law Revision Committee recommended that a new offence be created of detaining a child, or causing him to remain where he is, or to accompany another, so that he is kept out of the lawful control of his parent or guardian or other person having lawful control of him without their consent. With minor modifications, clause 2 gives effect to that. There have been instances—the case of Jones was one such, which was quoted in Committee—where there was a real interference with the parent's rights over the child, but where the anomalies of the 1861 Act made it difficult for effective action to be taken.
I hope that I have not detained the House unduly in setting the scene, but it is important, in welcoming on behalf of the Government what is a major change in the criminal law, that I should have said, in as thorough way as I can, why this is a most significant day in the House, because we are making a change in an important area of the law for the first time in over 125 years

Mr. Ivan Lawrence: I am grateful for the careful way in which the Under-Secretary of State has presented the Government's case. Could he say something about the extradition aspects of the new criminal law that we are about to pass? What is needed is the total enforcement of the law, and, if the enforcement of the law can be evaded by everyone going lock, stock and barrel out of the jurisdiction, and no further steps can be taken, the purpose of the law is obviously severely restricted

Mr. Mellor: As so often, my hon. and learned Friend has touched upon an important point. The essential benefit of the Bill, in terms of the cases that my hon. and learned Friend has in mind, is that it will be clear for the first time that in most of the cases that have caused trouble in recent years, the fugitive, in doing what he has done, has committed a serious criminal offence against the law of England. There is no doubt that in most jurisdictions it is a lot easier to enforce the criminal law by way of extradition proceedings than it is to enforce civil law orders, although every effort is made, as my hon. and learned Friend knows, to enter into arrangements with overseas countries so that both can be achieved. However, there is an additional gravity consequent upon a breach of

the criminal law as opposed to a breach in the case of, let us say, a custody order of the High Court. There is much greater gravity about a breach of the criminal law than of civil law or law of custody which makes this an enormous step in the right direction. I have to say to my hon. and learned Friend that what it cannot do is ease all the problems of the law of extradition as we now find them to be.
Extradition treaties have to be entered into. There are crucial gaps in the number of extradition treaties that we have. As no doubt my hon. and learned Friend is aware, there is a feeling abroad that the British laws of extradition make it so difficult for many overseas countries to get their fugitive offenders back that their enthusiasm is dampened for sending fugitive offenders back here. I was not aware that my hon. and learned Friend would raise this point, and so I hope that he will forgive me if I am not as fully briefed on it as I might have been, but I think that one country has recently abrogated its treaty with us for exactly those reasons. That is why a working party was set up to consider the law of extradition and that is why the question of tightening up the law on extradition is now being given careful consideration by the Home Office.
This area of law is difficult and sensitive. Although the enacting of this and other criminal statutes makes it easier to bring back fugitive offenders, they do not resolve the whole problem. One has to take an overall view, and also be committed to making it easier for extradition to take place instead of sitting back and saying that now that there is a criminal statute all the problems are resolved.
Indeed, I have been anxious to point out that all the problems will not be resolved. There will still be parents who will be ruthless and people who will be ready to be bought to help in such operations. Although, as has been said, the Home Office tries immediately on learning of such cases to have people at the ports to intervene—and it is much easier to justify intervention when there is a breach of the criminal law rather than when there is a breach of custody—people will still go overseas and it will still be difficult sometimes to get them back.

Sir Nicholas Bonsor: I believe that there is a European convention and a Hague convention dealing with the question of returning children to their countries of origin when there has been a dispute, but that Britain has not yet ratified either of them. That is really a matter for the Foreign Office, but I wonder whether my hon. Friend knows how things are likely to progress

Mr. Mellor: As my hon. Friend has said, that is really a matter for the Foreign Office. However, I assure the House that any problems in negotiations on such matters have nothing to do with any lack of commitment to effective rules on the part of this Government. Far from it

Mr. Gerald Bermingham: I shall refer to a particular case later, but I am particularly concerned about the child who goes abroad on holiday and is then detained by the other parent. That is particularly prevalent in the middle east and the far east. There has been no abduction, as it were, within the jurisdiction, but there has still been an abduction, and I am sure that other hon. Members, like me, would like to see that situation covered by the Bill, by extradition arrangements or by some form of international convention.

Mr. Mellor: Unfortunately, as the hon. Gentleman well knows, that point raises more difficult issues. The best advice that can be given to a parent is that she should be very sure that she can trust her estranged husband before letting her child out of our jurisdiction. There are difficulties, just as any offence committed overseas raises difficulties. We have always had a very clear rule in Britain that only in the gravest circumstances is extraterritoriality of offences total.
11.45 am
I commend the amendments to the House. It comes as a shock to many hon. Members to realise how many children are in the care of the local authority at any one time. I think that the figure of 46,500 was mentioned, and that last year in over 6,000 cases place of safety orders had to be made. I understand that about 10,000 children are in foster homes. That is a formidable number of children. If my arithmetic is right, and without making any allowance for the fact that some of those for whom place of safety orders were made may move on to care orders, we are talking about more than 60,000 children. That is a very substantial number.
We also know that problems are often associated with the circumstances in which children go into care. Few hon. Members have not had the experience of parents asking for their assistance when the child—they say wrongly—has been put into care. They are very distressing cases and often, alas, although the parent may appear to be extremely cogent when at one's advice centre, that appearance is contradicted by the report from the social services department.
It is not part of my case to say that every time that the parent is aggrieved by a care order made by the court that parent must be wrong. I do not suppose that the courts are any more certain to be correct in their judgments on care orders than anything else. Like the rest of us, they are fallible. However, I hope that hon. Members will agree that if a parent has failed to retain care and control of the child and the local authority has an order taking the child into care, neither the parent nor anyone else should be able to interfere with what the local authority does.
This is a difficult subject and not all the loopholes can be closed. Nevertheless, children in the care of local authorities and voluntary organisations—and many of them are in the care of such voluntary organisations, who still do a great deal of useful work—are entitled to the protection offered by the Bill. It was called for by the hon. Member for Battersea. Much work has gone into getting the drafting right. At first we were troubled that the insertion of lengthy provisions might overburden the Bill, but on balance my hon. Friend the Member for Stevenage has been persuaded that it would not be right to miss this opportunity, and I hope that the House will agree with him in due course

Mr. Wood: One of the crucial points to be borne in mind is that we are endeavouring to make it a criminal offence to take children out of the legitimate and lawful control of those who have such control. My hon. Friend the Member for Thanet, North (Mr. Gale) rightly commented on the concerns that are sometimes expressed about local authority decisions, but I believe that it is for the civil law and administration of our country to take the appropriate decisions in such cases, and that a parent or another should not be allowed to take the child out of the

country, and thus destroy any legal redress under our civil law. That is a crucial point, which must be borne in mind when considering the amendments and the Bill.
Of course, there will still be disputes between parents, between parents and local authorities and perhaps even between parents and foster parents and so on, but they should be resolved in this country, under our civil law. We cannot allow the situation to continue whereby a parent or someone else can simply take the child out of the country and so destroy the hopes of those who properly have control of him.
After we have dealt with this set of amendments, I shall talk about some of the matters relating to clause 1. I hope that we have clearly covered the various considerations to widen the scope of the Bill to cover children in care. I commend the amendments to the House.

Amendment agreed to

Mr. Wood: I beg to move amendment No. 11, in page 2, line 15, leave out subsection (5) and insert—
'(5) A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if—

(a) he does it in the belief that the other person—

(i) has consented; or
(ii) would consent if he was aware of all the relevant circumstances; or
(b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him; or
(c) the other person has unreasonably refused to consent, but paragraph (c) of this subsection does not apply where what is done relates to a child who is the subject of a custody order made by a court in England or Wales, or were the person who does it acts in breach of any direction under section 7 of the Guardianship of Minors Act 1971 or section 1(3) of the Guardianship Act 1973. 
(5A) Where, in proceedings for an offence under this section, there is sufficient evidence to raise an issue as to the application of subsection (5) above, it shall be for the prosecution to prove that that subsection does not apply.'.
Worries were expressed in Committee about the burden of proof in certain circumstances. I wish to emphasise some of the concerns and considerations so that people can understand clearly the context in which questions of burden of proof arise.
Few hon. Members have not been approached at some stage by a troubled parent fearful that his or her partner or former partner will try to vanish abroad with their children, or, worse still, by the distressed parent whose children have already disappeared. It is, nevertheless, worth reminding ourselves of the unhappy cases that hit the headlines all too frequently and that illustrate in human terms the problem that the Bill will, I hope, go some way to remedy.
Perhaps the most common case that comes to my attention is where children are taken abroad, in defiance of a court order, by the parent who was not awarded custody in the proceedings. However, a great many snatches take place at an earlier stage, either before legal proceedings are started or during the course of the proceedings, but before the court has reached its final determination on the issue of the children's custody. In those cases, one of the parties often seeks to pre-empt the court's decision by removing the children from the country so as to be beyond the reach of the court. Moreover, we should not forget those unfortunate cases involving the parent who, while not awarded custody of the children by the court, nevertheless enjoys access to them and works hard to maintain the parental relationship with them. Such


parents, too, suffer when their links with the children are severed because the custodial parent takes the children abroad, notwithstanding the court's prohibition on their removal from jurisdiction. All the circumstances that I have just described are covered by the Bill.
I have spoken of the plight of parents, but it is, of course, more often than not the children who are the real victims in these so-called tug-of-love cases. The children are the prime concern of the courts when they make orders as to custody and access and orders prohibiting the removal of children from the country. Indeed, it is a statutory principle. Section 1 of the Guardianship of Minors Act 1971 provides:
Where in any proceedings before any court … the custody or upbringing of a minor … is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father … is superior to that of the mother, or the claim of the mother is superior to that of the father.
The courts do not take their responsibilities in custody cases lightly, especially where the issues are hard fought. To assist them with their decision they have the power to call for a welfare report, so that the fullest information is available to them and the issues are examined in detail. One cannot help contrasting that approach with that of parents who abduct their children abroad and who, in many instances, are surely concerned only with their own wishes and desires and give no thought to whether it is in the children's best interests to be uprooted from their home and deprived of their links with the other parent, their relatives and their friends.
It is appropriate to mention one case that came to my attention which happily illustrates the concern of a mother who did put her child's interests above her own. The case concerns a two-year-old boy who was made a ward of court some six years ago, when the father made threats to take the child abroad. Unhappily, the father failed to return the child to his mother after a period of access and disappeared from the country with him. Luckily, the mother was able to find out where her son was living, and visited him the following year. Some of the most tragic cases are of mothers who do not even know whether their children are alive, still less where they are living.
The mother discovered that her sister-in-law was caring for the boy and taking pains to treat him as her own son. Consequently, the mother considered that it was in the boy's best interests that he remain where he was because, after months of trauma, he had finally settled in well. The mother visited her son once more later that year and once again determined not to uproot him and subject him to further disruption. She maintained close contact with her sister-in-law and visited her son again the following year.
Two years ago, however, she learnt that things were no longer going well and that her husband had formed a relationship with another woman which was detrimental to her son's welfare. She decided to visit, and fortunately with her mother-in-law's backing she was able to stay in the family home and strengthen her relationsip with her son. With great good fortune and the co-operation of the British high commission she was able to obtain her son's passport when her husband sent it for renewal, so she was ready to make her move.
She took him from school and, pursued by the father, crossed into a neighbouring state where she and the boy

were detained for a day. Fortunately, the authorities upheld her rights to the child and allowed them to proceed to the United Kingdom. The mother was aided, no doubt, in that she was in possession of English court orders giving her custody of her son which persuaded the authorities to act the way they did, and to disregard the allegations and arguments by the father. The boy has subsequently settled down well in this country, but his mother lives under the constant threat that his father will return to this country and take him from her.
That is but one illustration of the vast number of cases —at least 50 a year—that have proved so tragic and heart-rending for many families.
Concern was expressed in Committee that in seeking to control properly the tragic and distressing child abduction by a parent the provisions of the Bill should not risk imposing harsh or repressive sanctions on innocent travel arrangements made by a parent accompanying a child abroad. There are many occasions on which a lone parent will be travelling with a child. We must take care to ensure that if such people are challenged they do not risk conviction for an extremely serious offence, imprisonable for seven years, solely because they are unable to prove —albeit on the balance of probabilities—that they held certain beliefs.
My hon. Friend the Under-Secretary of State undertook in Committee to look again at whether the onus of proof should lie differently, and we have concluded that it should. This amendment and one to be moved later in relation to Scotland by my hon. Friend the Under-Secretary of State for Scotland ensures that it should fall upon the prosecution to prove the absence of the beliefs and other matters detailed in the paragraphs of the amended clause, rather than upon the defendant to prove their presence. It has long been part of good practice in framing criminal offences to have regard for the mental element of an offence

Mr. Lawrence: I wish to place no obstacle in the way of the conduct and progress of this admirable Bill. But how does the prosecution ever establish that a person had no belief, or even that he had a belief?

Mr. Wood: It is a difficult and delicate matter. However, at the very least there will be a great deal of circumstantial evidence of the behaviour and activity of the parent or abductor of a child. Such an individual would have to present some information and evidence, which it would be the duty of the prosecution to question.
Here it has been less easy than in some other offences since the mental element of the crime consists not only in wishing to remove the child without the appropriate consent but also in the absence of a belief that consent had been given or would have been given had it been sought.
It is right, however, that before a person is convicted of a crime, and particularly before a parent stands convicted of a serious crime against his own child, the prosecution should have persuaded a jury that the accused did not believe that the other parent would consent to the child's removal, or that the other conditions were not at the material time fulfilled.
12 noon
The case for altering the burden of proof in this way has been presented to me by a considerable body of respected legal and academic opinion, as well as indirectly in discussion of the Bill in Committee. If I felt that the evil


that clause 1 is designed to control would be less successfully controlled by the amendment, I should not be moving it today, but I do not feel that this is the case, especially as the amendment does not allow the defendant to sit back in court and do nothing—he cannot make the prosecution prove that any part of subsection (5) does not apply unless he adduces sufficient evidence to raise an issue on that part. We all have an interest in good and careful law making, and that interest is best served by continuing to formulate offences with careful regard to the proper placing of the burden of proof and scrupulous testing of the public interest in the circumstances in which prosecutions may be brought.
In the light of these considerations—like my hon. and learned Friend, I had some reservations —I have thought it right to move the amendment to clause 1, although I say at once that the same considerations do not apply to clause 2 which deals with strangers, not parents, and frequently with brutality and vice rather than a "tug of love". In a clause 2 offence, there is no question of having regard for the peculiarly distressing position of a parent charged with an offence against his own child, or of the many circumstances in which innocent travel arrangements might be made by a responsible parent who is unable to contact an estranged partner before making an urgent trip abroad. Clause 2 deals with strangers who have no business to be with a particular child, and I adhere strongly to the view that the onus here lies on the adult to show why he should have taken or detained the child from where he or she was supposed to be.
Returning to the mischief to which clause 1 is directed, I should like to take the opportunity of expanding a little on the current procedures which are available for dealing with breaches of custody and related orders and will, of course, continue to be available when my Bill is on the statute book. It is useful to look at these in some detail so as to have a composite picture of the administrative and legal steps which can be taken when these very sad cases occur.
Where a court in England and Wales makes an order relating to the custody of a child it is, generally speaking, for the parties involved to comply with it. The order does not of itself entitle the person in whose favour it is made to enforce his or her legal rights. To enforce the order through the legal process in the event of non-compliance, it is necessary to take further proceedings. Many custody orders, however, contain a prohibition on the removal of the child from England and Wales. Where this is the case, it is possible in practice to seek the assistance of certain Government Departments in preventing such a removal. The two primary administrative measures available concern the grant of passport facilities to children and the Home Office arrangements for alerting the major sea and airports to a potential removal.
A prohibition on the removal of a child from England and Wales is automatically included in a custody or care and control order made in the course of divorce proceedings unless the court otherwise directs. In the case of custody orders made in guardianship proceedings or in magistrates' matrimonial proceedings it is open to the parties to the proceedings to apply to the court for a direction to this effect. A child who is a ward of court may not be taken out of the jurisdiction without the leave of the court and this applies with immediate effect as from the making of the wardship application, when the child becomes a ward of court automatically.
There is, in addition, a passport office "caveat" procedure whereby any parent whose child is the subject of a court order precluding the child's removal from England and Wales, or the mother of any illegitimate child, may request the passport office not to issue a passport in the child's name without his or her knowledge. If at the time of making such a request the child already has a valid passport, or is included in the valid passport of a relative, the passport office has no power to compel the surrender of the passport in order that the child's name be removed. The most that the passport office can do in these circumstances is to note the name of the child in its records for a period of 12 months. If during that time the passport concerned comes into its possession for any reason, or another application for passport facilities for the child is made, the passport office will take action in respect of the objection lodged by the parent.
Those arrangements do not apply to the issue of a British visitor's passport, which is available from main post offices. This document is valid for one year and can be used for travel to certain Western European countries, Bermuda and Canada, but only for holiday purposes.
In April this year the president of the Family Division issued a practice direction which advised that where courts order the surrender of a United Kingdom passport issued to or containing particulars of a child, it is essential that the court concerned notifies the passport office so as to prevent the issue of a replacement passport.
I should add that I and other Members have pursued the question of passports. Although there are difficulties in the present position, I believe that the difficulties entailed by introducing more restrictive arrangements would overwhelm the advantages that might be gained in cases of this kind.
I turn now to port precautions, which can be taken by the Home Office when a child is a ward of court or the subject of an injunction or custody order containing a prohibition on the child's removal from England and Wales. If it appears that there is a real danger of an attempt being made to remove the child within 24 to 48 hours, the Home Office will institute, on request, such precautions as are possible at ports and airports to prevent the unlawful removal. This service is available 24 hours a day, although it is not possible to contact all ports and airports outside normal office hours. A "stop-list" is maintained at all points of immigration control and an immigration officer identifying a child whose name appears on the list will bring the child and anyone accompanying him to the attention of a police officer. Persuasion is normally used to prevent embarkation, but where this fails force may be used. Where it has been authorised by a court, a child intercepted in this way may be detained at the port until delivered to the person entitled to custody or care and control. The Home Office "stop-list" procedure was initiated by the then Home Secretary and Lord Chancellor in the early 1950s. In 1982 the Home Office was consulted and port precautions were instituted in 355 cases.
It is worth looking also at the procedures for the formal enforcement of a court order. As mentioned, the enforcement of a custody order by way of legal process necessitates the taking of further proceedings. Depending on the court and the nature of the proceedings in which the custody order was made, these may include applying for an order for the return of the child, applying to have the person in breach of the order dealt with for contempt of court and seeking an injunction.
An order of the court for the return of a ward of court to the person to whom the court has entrusted custody can be enforced by directing the tipstaff to take possession of the child and deliver him to that person. If the ward has disappeared, the court can summarily order anyone who knows or may be supposed to know of the ward's whereabouts to give information to the court. In addition, the tipstaff can seek the assistance of the police in tracing a missing ward. The arrangements set out there are without prejudice to any help that the police might give informally at an earlier stage. Once a missing ward is traced, the tipstaff is immediately informed so that he can enforce the order.
Failure to comply with a wardship order or any other order relating to the custody of a child constitutes contempt of court. In the High Court and county court, disobedience to the terms of the order is punishable with committal, sequestration or fine. In the magistrates court contravention of a custody order can also attract the sanction of imprisonment or a fine.
In the case of the removal of a child abroad, the difficulty with the enforcement machinery at the disposal of the court is that of the speed with which it can be mobilised. However, in an emergency, where there is no order of any sort prohibiting the removal of the child abroad, the child can be made a ward or an injunction restraining removal can be sought as a matter of urgency. This action, by making the removal unlawful, can then be followed by a request for Home Office assistance at the ports.
To complete the picture, it is worth while looking also at national and international developments relating to the removal of children. I should point out, however, that most procedures relate to children who are the subject of an order for custody, whereas my Bill will also protect fully the child of a subsisting marriage. Once a child has been taken out of England and Wales there are no means whereby his return can be brought about by legal proceedings undertaken in this country. It is necessary to try to obtain custody of the child through the courts of the country where he is now living. This is the case whether the child has been moved from one law district of the United Kingdom to another or outside the United Kingdom altogether.
Within the United Kingdom, the Law Commission and the Scottish Law Commission have been undertaking a joint study of the basis of the courts' jurisdiction to make orders for the custody of minors and the enforcement of such orders as between the three separate law districts of Scotland, Northern Ireland and England and Wales. Following the issue of a discussion paper on the subject in 1976, the law commissioners are now in the final stages of preparing a report and draft Bill on the reciprocal recognition and enforcement of a child custody order and the harmonisation of the rules governing jurisdiction to make such orders.
At the international level, the improper removal of children or their retention abroad is a problem which has received increasing attention in recent years and the Government have played a major part in international discussions to find a way of helping in such cases. As we discussed earlier, two conventions have been prepared.
The first is the Council of Europe convention on recognition and enforcement of decisions relating to the

custody of children. The 7th conference of European Ministers of Justice set up a committee of experts to study forms of co-operation for affording children increased international protection based solely on their welfare. The resulting convention was signed by 15 states, including the United Kingdom, at the 12th conference of European Ministers of Justice on 20 May 1980. Other signatories are Austria, Belgium, Cyprus, France, the Federal Republic of Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Portugal, Spain and Switzerland. The convention has so far been ratified by France, Luxembourg, Portugal and Switzerland.
The second is the Hague convention on the civil aspects of international child abduction. This convention was finalised by the Hague conference on private international law at its 14th session in October 1980. The signatories so far are Belgium, Canada, France, Greece, Portugal, Switzerland and the United States. Of those Canada, France, Portugal and Switzerland have also ratified it.
To a large extent the conventions follow similar lines. The interests of the child are of paramount importance; both envisage the establishment of a central authority to act as the point of contact between states and secure the child's prompt return, and both cover children in the care of institutions.
Ratification of the conventions by the United Kingdom is some way off, since legislation will be required following extensive consultations with the judiciary and other interests. The resolution of the legal conflict within the United Kingdom surrounding jurisdiction and enforcement in child custody cases will also be an essential preliminary. Ratification of the Council of Europe convention, which the United Kingdom has already signed, cannot readily be considered in isolation from the signature and ratification of the Hague convention, since the legislation which would be required to give effect to them would also need to reconcile their slightly different requirements and to establish which should apply in areas where the two conflict.

Mr. Lyell: I have read amendment No. 11 carefully and I am a little worried about the punctuation. The amendment says:
A person does not commit an offence under this section …if … (b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him".
Is not that too wide a let-out? Would it not let out someone who knew perfectly well that even if he succeeded in communicating there would not be consent and who chose a moment, perhaps quite a long period when he knew that he could establish that he could not communicate, to take the child, perhaps at a time when the child would be especially vulnerable? I do not know whether my hon. Friend can answer this point in full now, but I draw his attention to it. Should not the punctuation of subparagraphs (a) and (b) be rather different and require it to be shown that one had both a belief that the other person would consent in all the relevant circumstances and had taken all reasonable steps?

Mr. Wood: I am grateful to my hon. Friend for that comment. In the first instance, it is clearly necessary to establish the point that it may be extremely difficult for an individual to communicate. There are many cases in which one parent is completely out of touch with another and therefore it could be wholly unreasonable to expect that


satisfactory communication could have occurred. Nevertheless, I take the point. If on further consideration there needs to be any modification, I am sure that that can be given consideration in another place.
I have now gone into considerable detail about the context and the requirements of clause 1 to ensure that while we have the panoply of civil law governing actions taking place within Britain, at the same time we must prevent that being overridden by someone taking a child out of the United Kingdom.
I hope that amendment No. 11 will set the balance of prudence correctly, perhaps after consideration of the valuable point that my hon. Friend made. If the amendment is incorporated in clause 1, it will fulfil our intentions admirably

Mr. Lawrence: I want to address my remarks to the burden of proof which arises in clause 1(5)(a). I am not at all happy with the way in which this has been drafted. It is almost impossible for the prosecution to establish that a man had any particular belief. What he believed at the necessary time is a matter which could only be established, and perhaps even then not perfectly, if he said what he believed. One cannot open up a man's mind to examine its inner workings. Perhaps one day science will enable us to do that but at present one cannot foresee that that will ever be done at a particular date, at a particular time in history.
Clause 1 requires a subjective test—what does a man believe? It says:
A person does not commit an offence … if he does it in the belief … 
Therefore, in a circumstance where an accused is placed in no position to be forced to say what his belief was, it is thoroughly unsatisfactory to place the burden of proof upon the prosecution. My hon. Friend the Member for Stevenage (Mr. Wood) said that he is not forced into that position, but consideration must be given to circumstantial evidence. With great respect to my hon. Friend the Member for Stevenage, that is riot satisfactory either

Mr. Lyell: Will my hon. and learned Friend give way?

Mr. Lawrence: I will be happy to give way when I have made this point.
As the new clause is drafted, the requirement is that he should have the belief. That is a subjective test. It is not an objective test in which circumstantial evidence will be relevant. The courts have had plenty of trouble in the past over the mental element required to be established before crime can be established, and a great deal of heart-searching in the law has taken place in recent years about the circumstances in which the subjective or objective test can be applied.
It is clear from the drafting of the new clause that the test must be—and will be interpreted by the courts as being—a subjective test. The important thing would be what was in the man's mind. The circumstantial evidence is therefore irrelevant. The circumstantial evidence might indicate strongly to a reasonable person—to a man on the Clapham omnibus — that such and such is the situation, but the man from whom the court requires belief may say, "Those may be the circumstances, but I can only tell you about myself. I did not believe it, perhaps because I was so carried away by my enthusiasm, or so angered and upset by the situation, that my ordinary man's balance of mind was for a moment taken away and I was incapable

of making a rational judgment." The fact remains that the clause requires that his belief must be established. It may not be possible to establish that belief if he does not have to give an account of himself

Mr. Lyell: My hon. and learned Friend seems to be worried that the test of belief is a subjective test. Every day, courts have to decide whether somebody did something dishonestly — that is part of many criminal statutes—or whether they have a claim of right made in good faith. Are the courts not then deciding whether someone, subjectively, had a certain belief? How does one draw a distinction between those circumstances, with which my hon. and learned Friend will be very familiar, and the problem which he raises in this case?

Mr. Lawrence: My hon. and learned Friend raises the question of a claim of right made in good faith. That is a defence which has to be raised by the accused. The burden is upon the prosecution to displace it, but it has to be raised in the first instance by the accused. There is no provision in the clause for a defendant to raise such a claim. As for the general burden on the prosecution to establish what is in a man's mind, it is very difficult for the prosecution to establish what is in a man's mind in circumstances where what was in his mind is the only issue.
It is easy for the prosecution to establish guilt if a man is caught red-handed and identified as taking part in a robbery. There is no question there of what was in the man's mind. What is in a man's mind may be inferred. If a man robs a bank with guns and masks, we infer that he was not intending to go about his lawful business. The issue of what was in his mind does not, as a practical matter, arise. However, it certainly arises in the drafting of the clause.
In reply to my interjection in his speech, my hon. Friend the Member for Stevenage also said that the accused cannot sit still and do nothing; he must raise the issue. That arises out of new clause 5. There is a difficulty there. He raises the issue by saying, "Not guilty." The court may very well say, as courts have said in cases of self-defence, that a mere plea of not guilty where the circumstances might conceivably give rise to a defence of self-defence is enough to place the burden upon the judge to sum up on the issue of self-defence as the law deals with that matter. Even a plea of not guilty might be said to raise the issue, but even if that is going too far the accused surely raises the issue if, in the course of an interview with the police, he says, "I believed that I had the consent of the mother," or, "I believed that the mother would have let me take the child away." The issue is raised, and he has no obligation under the new clause to give an account of himself.
It therefore seems to me that it will be difficult, unless the clause is altered, to convict any man who raises, even remotely, the possibility that he might have had the subjective belief. The burden is placed upon the prosecution to show that he could not and did not have that belief.
The importance of that is that there is no point in having this law at all if everybody who is charged under it is to go free because it is too difficult for the prosecution to establish guilt. It is only sensible to have a law which slightly relieves the burden upon the prosecution by placing some burden upon the allegedly wrong-doing parent to explain himself. That is why, as redrafted, I do not think that this provision makes much sense.
Being constructive, may I suggest that before the Bill comes back to this House consideration should be given to some alteration in the drafting of the new clause? Off the top of my head, I suggest something on the following lines: "A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if that person has reasonable grounds for believing that the other person had consented or would have consented."
That insertion would ensure that circumstantial evidence could be taken into consideration, as my hon. Friend believes that it can be under the existing drafting, but I suggest that it cannot. The court could then reason as follows: "Those were the facts, and from those facts we conclude that the person in the dock must have had the belief." In those circumstances, there would be reasonable grounds for a person holding such a belief. My suggestion is not perfect, as it still does not completely get round my objection that, in the end, it will be difficult to open up the man's mind and find out, subjectively, what it contained at the time. My suggestion might not be terribly helpful for that reason. I might be wrong and there might be sufficient precedents in the law to support the most helpful suggestion as I can make. However, before the man's belief has been considered, there must be some provision in the statute which allows reasonable grounds for having that belief to be considered. Perhaps all of the authorities can give this matter closer attention before it comes back to the House. I fear that, if we leave it as it is, few people will be convicted.

Mr. Lyell: I am glad to follow my hon. and learned Friend the Member for Burton (Mr. Lawrence). If I may respectfully say so, he raised an important point towards the end of his speech when he drew the House's attention to the difference between belief and reasonable grounds for believing. Having said that, however, I must respectfully suggest that I fall on the other side of the divide on this matter and I should like to explain why.
We must remember that clause 1 is likely to bite on tens if not hundreds of thousands of cases. We are all only too well aware of the number of divorce cases in Britain, and the number that involve children. Because holidays abroad are fairly common for many families, many children might fall within the ambit of the Bill and in particular clause 1. It is important that we do not bring into divorce and custody proceedings unreasonable fears about the ambit of the criminal law. This important Bill tries to deal with a small minority of wicked cases that involve child abduction. It is not desirable that it should be introduced as a threat for the large number of honest but sad cases in which there are elements of dispute about families

Mr. Lawrence: Is not one of the main functions of the Bill to deter a would-be offender from taking a child outside the jurisdiction? Therefore, the fear and the threat is fundamental to the practicality of the Bill

Mr. Lyell: I entirely agree with my hon. and learned Friend but I am sure that he agrees that it is desperately important to get the balance right. I have conducted quite a large number of divorce cases in my professional life and anyone who has been so involved is familiar with the

mounds of correspondence between solicitors and parents that can arise on whether children shall be allowed to be taken here, there or anywhere. There are unquestionably opportunities for genuine confusion and, sadly, divorce cases are all too often overlaid with such strong emotions, not to say spite in some cases, that people are inclined to rely in unsuitable circumstances on criminal law which is over-widely drawn. It is therefore important that we draw the law carefully

Mr. Bermingham: Does the hon. and learned Gentleman agree that if the clause is drawn too widely the evil he perceives could easily arise? Perhaps I can suggest the example of a matrimonial dispute proceeding on property matters. One parent takes the children abroad on holiday with the consent of the other parent but, during the holiday, the parent back in England says, "If you do not agree I want the children back tomorrow." The parent abroad says, "I want the children to finish their holidays." Because of the way in which the amendment is drafted, there arises a real possibility of the holiday, and the suggestion of immediate return, becoming a weapon in a different type of divorce situation

Mr. Lyell: I am grateful to the hon. Member for St. Helens, South (Mr. Bermingham) for that comment. His knowledge of such circumstances is probably greater than mine because he, as a solicitor, has to write the letters whereas I, as a barrister, have only the opportunity of reading them, except in the most contentious cases. The clause has probably got the balance right. I agree with the hon. Gentleman that we must not draw it too widely. Therefore, the test that the court should apply is whether there is an honest belief, and that is implied by the word "belief". I fear that we should be going too wide —although I listened with great respect to my hon. and learned Friend the Member for Burton — if we defined it as "reasonable ground for belief". We could have a parent who could be shown not to have reasonable grounds, but who had an honest belief. We would be reluctant to imprison, or at least risk the imprisonment of, that parent.
However, I am sure that other minds, away from the cut and thrust of the debate, are applying themselves carefully to these important points on which both my hon. and learned Friend and I have been addressing the House. Subject to the point that I raised with my hon. and learned Friend earlier about the detailed drafting of clause 1(5)(a) and (b) and the requirement that one should not simply have taken all reasonable steps but should have had an honest belief that there would be reasonable consent—this point is separate from the one with which we have been dealing—this amendment is a great improvement on the original subsection (5) and, therefore, it will have my support. However, it has it in the confident knowledge that there will be opportunity between now and the Bill completing its stages for these matters to be carefully considered

Mr. Robert Rhodes James: For reasons that are clear to the House and which my hon. Friend the Minister generously expressed, I should be the last person to delay the passage of this Bill. It has been most ably piloted through the House by my hon. Friend the Member for Stevenage (Mr. Wood). I wish to add to the point made by my hon. and learned Friend the Member for Burton (Mr. Lawrence). I am concerned about clause 1(5)(a). It could be a considerable weakness in what is meant to be,


and always was intended to be, a major deterrent Bill. Will my hon. Friend the Minister give us an assurance that between now and when we next see the Bill after it has been to the other place the matter will be most carefully considered by the Minister and by my hon. Friend the Member for Stevenage?

Mr. Gale: I add my support to what has been said by my hon. Friend the Member for Cambridge (Mr. Rhodes James) and the latter remarks made by my hon. and learned Friend the Member for Burton (Mr. Lawrence). I am slightly bemused by the amount of learned knowledge in the Chamber. It is something of which I have no experience. Therefore, fortuitously, I am one who might in other circumstances have served as one of the 12 good men and true that were required to exercise some decision in such cases.
I share the concern and doubts that have been expressed about clause 1(5)(a) as proposed. My hon. and learned Friend the Member for Burton implied that this was done without considerable thought, but his suggestion is a sound one and I hope that it will be considered. Otherwise, there might be a great weakness in what otherwise is an excellent amendment and a good Bill.
My hon. Friend the Member for Stevenage (Mr. Wood) was good enough to introduce into this part of the Bill the subject, first introduced by the hon. Member for Battersea (Mr. Dubs) in Committee, of the manner of the issue of passports. While I accept that that may not properly be a matter for the Bill, I believe that it is properly a matter for concern. My hon. Friend the Member for Stevenage said that the passport office has no power to compel the surrender of a passport that has already been issued in the name of a child or that has been issued to a parent. That is another area of weakness. If it is not within the power of the Bill to consider, it should be within the power of the Foreign and Commonwealth Office to consider and perhaps review.
With that in mind, I should like to refer to the Adjournment debate mentioned by my hon. Friend the Member for Stevenage in Committee. It was initiated by my hon. Friend the Member for Stockport (Mr. Faye11) and took place shortly before Christmas. An undertaking was given that the Foreign Office would review the way in which passports were isued. I should like to think that in the light of the proposed legislation, the review will now take place as a matter of urgency.
We could be faced with a nonsense in that, having sought to protect a parent's, and indeed a child's, rights, it is still possible for another parent or another party to obtain a passport with that child's name upon it or in the child's name, and to take that child abroad. It would not be difficult to require on a passport application the written consent of both parents for the issue of a passport in a child's name or a passport that includes the name of the child so that there is no possibility of a passport having to be withdrawn without consent. Where a passport is renewed with consent, it would have to have the written consent of the person who has custody of the child. More than in any other area, a child could be placed at risk when he goes on holiday. Therefore, the regulations for the issue of British visitors' passports, which are commonly used for holidays, should be reviewed as a matter of urgency

Mr. Bermingham: I should not like to enter the argument about paragraphs (a) and (b), but I ask the

Minister to look carefully at what is meant by paragraph (c). Its wording seems nebulous. It seems to vary depending on the order under which the child is held.
It seems that paragraph (c) does not deal with children who are the subject matter of a court order made in England or Wales or with people affected by section 7 of the Guardianship of Minors Act 1971 or the Guardianship Act 1973. Therefore, it excludes Welsh and English court orders. Paragraph (c) states:
the other person has unreasonably refused to consent
Will we place on the investigating authority the duty to ascertain the exact nature and meaning of the custody order under which the child is held? There may be a French custody order for a child who is normally resident in the United Kingdom, and the father might have sought to take the child out of the United Kingdom, thus committing an offence under the Bill, whose aims I support. All sorts of problems might arise.
What does paragraph (c) mean when it states:
the other person has unreasonably refused to consent"?
How can we not argue that under an English court order a parent has unreasonably refused consent? I accept that under an English court order one makes an application to the court and it says what is or is not unreasonable. However, one does not know what will happen under a foreign court order. One would therefore be asking a jury to consider whether the French, German or American court would or would not vary the order to grant what is proposed.
I seek not to be unhelpful, but I should like to be able to prevent or pre-empt such arguments in the courts after the passage of the Bill. Therefore, I wonder whether paragraph (c) could be examined during the final stages of the Bill. As now worded, it could give rise to considerable problems.

Mr. Mellor: Before coming to the heart of the amendment, I should like to deal with two points not relating precisely to the question of burden of proof that exercises our minds most of the time.
With regard to the point mentioned by the hon. Member for St. Helens, South (Mr. Bermingham), the aim of the wording is to take away from the accused parent the right to invoke the defence of an unreasonable refusal by the other parent in cases where there is an existing custody order, or where directions have been given under the legislation. Plainly, where a custody order is in force, as the hon. Gentleman recognises, serious matters such as taking a child out of the jurisdiction of the court have to be dealt with in accordance with the regulations. It would be wrong to allow a parent who has acted in breach of the provisions to avail himself of any allegation that the parent with custody had unreasonably refused his or her application. There is a form provided whereby that problem can be thrashed out.
My hon. Friend the Member for Thanet, North (Mr. Gale) mentioned passports. Difficult matters arise in this area. I understand why he said what he did and I know the difficulty. The British visitor's passport can be obtained very quickly and monitoring it raises great difficulties. My hon. Friend has raised an important point and I shall ensure that it will be considered with great care by my right hon. Friend the Minister of State, who now has responsibility for the passport office. He will write to my hon. Friend on the issues raised.
I agree that there are distressing cases where it is apparent that in acting improperly, even if not unlawfully, a parent has had a child's name added to a passport in order to enable that parent to abduct the child. If we could do something to make that process more difficult, we should do so.
The central issue arising from the amendment is a difficult one and not one on which any of us should be dogmatic. Indeed, it is one upon which my own views have oscillated during the preparation of the Bill and in discussions that I have had with ministerial colleagues and others in deciding how I could best advise my hon. Friend the Member for Stevenage (Mr. Wood). It is most useful that we have had an opportunity to discuss the problem in detail this morning.
Plainly the temptation with a measure of this kind is to say, "The important thing is to stop child abduction, we have done it, and that is wonderful", without paying sufficient attention to the precise details. Only later we may realise that, although it has taken 128 years to effect the change, we now have in the measure something that may make more difficult the enforcement of the law. Legislative opportunities do not often arise and one would not want to have such things on the statute book for even a fraction of that long period.
As an essential prelude to answering some of the questions that have arisen on the amendment, I assure those hon. Members who are troubled about it that we shall consider the question again in the light of the comments made. If it appears that there are difficulties arising from the way the paragraph has been phrased and we decide that it should be altered, we shall take the opportunity to do so. It is not a matter on which any of us can say that the drafting has reached such a stage of perfection that no difficulties arise from it.
On the central issue as to where the burden of proof should lie, I confess that I have been persuaded by considerations very much along the lines advanced by my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell), who is also parliamentary private secretary to the Attorney-General and therefore understands the problems. I have allowed myself during the course of these discussions to be persuaded that my initial impulse, which was to place the burden of proof on the defendant throughout, was perhaps wrong

Mr. Lawrence: As one who is not the parliamentary private secretary to the Attorney-General, and who therefore must be taken to know less about these matters, I hesitate to ask my hon. Friend whether, in view of the conflict that arises among colleagues on these Benches who have considerable legal background, and the doubts that have been expressed by colleagues who do not have legal background but who are nevertheless intimately concerned with this issue, and the doubts that the Under-Secretary has himself expressed, when he says that there has been some vacillation between the two poles, it would not be appropriate to refer this aspect back for examination and decision in as short a time as possible to the Criminal Law Revision Committee. That must be the body best suited to reflect the views, thoughts and fears that have been expressed and perhaps reconsider the matter with rather more perfect care than could any other body

Mr. Mellor: I know that my hon. and learned Friend is anxious to be helpful and I can best answer him by explaining what we have done. It was not my intention in an infelicitous phrase to suggest that the onerous office that my hon. and learned Friend the Member for Mid-Bedfordshire holds gives him some insight denied to the rest of us. It was merely a way of saying that the advice of the Law Officers on matters of law is not to be lightly ignored and that I, in the course seeking how best to discharge my functions in the matter and in advising my hon. Friend the Member for Stevenage, had taken advice from the Solicitor-General on the pint. I do not think that I betray a confidence when I say that it is his firm view, as reflected by my hon. and learned Friend the Member for Mid-Bedfordshire, that in the circumstances of this situation, the burden of proof should lie on the prosecution.
It is important to understand that that is not an outlandish or unusual proposition. As the hon. Member for Blyth Valley (Mr. Ryman) made clear in Committee, when asking for the burden of proof to be moved back on to the prosecution from the defence, as provided in the original Bill, the fundamental common law rule is that it is for the prosecution to prove every material part of its case beyond reasonable doubt.
It is a relatively recent statutory accretion to the law that, usually to cover very technical cases, the burden is placed, on the balance of prababilities, on the defence in certain instances. In some important statutory offences, however, the burden of proof is placed on the prosecution on matters which, one could say, lie very much within the knowledge of the defendant.
For instance, in rape the prosecution must show that the defendant believed that the woman was not consenting or that he was reckless as to whether she was consenting. I should have thought that that was quintessentially a matter in his own mind. It is an important prt of the criminal process, as we know—none better than my hon. and learned Friend the Member for Burton who has featured in many celebrated cases at the Old Bailey—that the exercise of looking into the head of the accused and trying to reach a sensible conclusion as to what he did or did not think at the material time is inherent in the criminal process.
I should also pray in aid—because the way in which the Theft Act is drafted has affected the drafting of the amendment—that in a case of handling stolen goods the prosecution must show that the defendant knew or believed that the goods were stolen. That again is a matter touching upon his belief and knowledge that lies very much within his own mind but which the prosecution have to take on. It has to shoulder the burden of proof.
Why are we allowing ourselves to be moved from the proposition that the burden of proof should be on the defence to the more normal one that it should be on the prosecution? First, I must emphasise that this relates only to parents, who fall under clause 1. I do not want anyone to think that it affects the position of the mercenaries or other people with no connection with the child who became involved in taking the child out of the care of his parents. We have to recognise that the position of a parent taking his child, even though acting wrongfully, raises special issues about the extent to which the criminal law should intervene. We have to think particularly about the position of a parent who may have acted negligently and, in the minds of most people, wrongly, but who in his own


mind was acting properly even though it was a decision that most other people would not have taken. We have to ask ourselves whether we should make it more difficult for him to be able, after what in any event was the shocking experience of being arrested, to exculpate himself.
I stress that I am talking about parents. My hon. Friend the Member for Stevenage has displayed great candour in his contributions to our debates. He has never hesitated to make it clear when there was a difficulty. He conceded in Committee that this provision would put at risk certain parents who might be no more than negligent in failing to obtain appropriate consent. He also conceded that it might expose to prosecution an individual who otherwise would have the advantage of one of the defences. My hon. Friend accepts that, as we all do, for one very good reason. The nature of the mischief at which the Bill is aimed is such that only by casting the net very wide can we be sure of catching all those cases which ought to be caught. It would be pointless to pass this measure unless it was a wide-ranging one and had within its ambit a range of activities which until now had not been so clearly caught.
To justify the arrangements that he proposed, my hon. Friend pointed out the requirement that the consent of the Director of Public Prosecutions needed to be obtained before proceeding under clause 1, to avoid the prospect of the criminal law being dragged into a dispute between an estranged husband and wife.
There are few more bitter encounters in court than those between a former husband and wife. It is deeply distressing. There is a willingness, which I find rather shocking, by two people who were once in love to use any weapon against each other, including their children. That is why it is thought that the consent of the DPP should be required. That would have the effect of preventing prosecution in unmeritorious cases and in cases where the facts were such that the defendant would unquestionably avail himself of the provisions of clause 1(5).
The judgment of my hon. and learned Friend the Solicitor-General—and increasingly I am coming to the same view—is that there will be a significant number of cases in which, notwithstanding that the defendant is entitled to be acquitted, he will be obliged to discharge the burden of proof imposed upon him by the Bill as it is drafted before he can be acquitted. We have to ask ourselves whether that is right or whether it would be appropriate to give the defendant that greater measure of protection which would arise if the prosecution was required to rebut the matters raised by him and relied upon by him in his defence.
If I thought that as a consequence of that a great many criminal parents would get away with it, I should stick to my original view. I should not dream of advising the House to take a different view. However, I have to say that my own opinion, strengthened not only by that of my hon. and learned Friend the Solicitor-General, but by consultations—and very properly, this being a technical criminal law matter — that we have had with Lord Justice Lawton, is that this step can safely be taken without letting unmeritorious people slip away. I think that that is very much the point with which my hon. and learned Friend the Member for Burton was dealing. I do not think that it would be proper formally to burden the Criminal Law Revision Committee with a reference that might in any event have the effect of not allowing the measure to become law this Session. However, it seemed right that, before dreaming of advising my hon. Friend that he might

wish to bring forward such an amendment, my officials and I should have informal consultations with Lord Justice Lawton as to his view.

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Mr. Bermingham: I have been thinking about what the Minister said with regard to the question of the consent of the Director of Public Prosecutions. I can see immediately that, in the sort of situation to which I referred in my intervention, there would be no prosecution in that case, because the director would say that it is not policy. However, the wording I have is that the director comes later in the process. The first stage is the policeman with his hand on the shoulder when the father returns to the country with the young children who have been the subject matter of some dispute in the case that I cited. Would the Minister be prepared to give that sort of scenario some thought so that it could be dealt with in the advice and guidelines given to police forces, so as not to create in this section a weapon in the hands of warring parents in divorce cases?

Mr. Mellor: The hon. Gentleman raises a point that is very much on all fours with the point that I was raising, and I am grateful to him. A difficult balance has to be struck here. We all know that the law is not satisfactory. We all know that the law has to be tightened up to make it easier to bring to book thoroughly irresponsible parents who are causing great misery to children as a result of their selfishness. We know that the only way in which we can do that is by casting the net more widely. However, we cannot be naive about this. We have to understand also that there may be a number of people who, while they may not be behaving with all logic, skill and insight, which it is often difficult to do in an emotional situation, but which a more detached person could do, have not in fact behaved in a way that most people would consider criminal. We have to ask ourselves how far they are to be brought within the criminal process, and how they are to be able to exculpate themselves with the minimum of difficulty and distress. There is something in what the hon. Gentleman says.
I wish to conclude on this point. We owe Lord Justice Lawton many debts of gratitude for the careful analysis that he gave of the principles underlying the question of the burden of proof, as to when it fell on the prosecution, and when it fell on the defence, in the case of Edwards, reported in 1975, which I know took up a great deal of his time, and which has every prospect of standing as one of the major judgments of recent years in the criminal law. Strengthened by the fact that this was a matter which he had particularly considered, we took his advice. While I am not holding him to the precise wording—and that is why one is not dogmatic about the precise way in which the words are set down on the page—it is our confident belief that the effect of subsection (5)(a) is that it will not be sufficient for the defendant to say, "By pleading not guilty, I have put everything in issue." The burden will lie on the prosecution in the normal way under clause 1(1), when it has the opportunity to bring its case, to prove that a person connected with a child under the age of 16 has comitted the offence by taking or sending the child out of the United Kingdom without the appropriate consent. It will not be sufficient for that defendant's counsel or solicitor then to to say that there is no case to answer because the prosecution has not been able to prove at that


point that the defendant did not have the belief that the other person had consented, or would consent, or that he had not taken all reasonable steps. No. The burden would lie with the defence to raise that in evidence. It has an evidential burden on it, in its own case. It would then be for the prosecution, if so minded, to discredit that in cross-examination, or to apply for leave — which would undoubtedly be given—to call evidence in rebuttal.
I particularly wanted some reassurance about whether, by changing the burden of proof, one would make it easier for spurious and unmeritorious submissions of no case to answer to be made successfully. Once I was satisfied that we could make provision for the accused to be compelled —as I believe that subsection (5)(a) does—to lay an evidential foundation for a defence of belief, or for a defence that he took reasonable steps which, when laid, moved the probative burden of destroying it, with or without evidence, on to the prosecution, I was happy that no material mischief would be done.
This issue is one that divides allies. A formidable alliance was formed between my hon. and learned Friend the Member for Burton (Mr. Lawrence) and the hon. Member for Blyth Valley on the Juries (Disqualification) Bill. They are both very well known figures in the criminal courts, but they now find themselves on opposite sides of the argument on this issue. That shows how narrowly based the point is. That is why I am allowed, if not to vacillate—as my hon. and learned Friend the Member for Burton suggested—at least to oscillate between the two. However I do not think that I vacillated earlier. There is a crucial difference between vacillating and oscillating, which I hope is clear. However, I have oscillated to the view that, given the safeguard in subsection (5)(a) and the reassurance that it is thought to be effective by Lord Justice Lawton, we should bow to the views put to us so lucidly by my hon. and learned Friend the Solicitor-General and make the changes.
We shall look at the matter again, but I hope that I have said enough for those who have doubts to feel that they can, with confidence, accept the amendment. Of course, my hon. Friend the Member for Stevenage and the person to whom he entrusts care of the Bill in the other place will keep an open mind on how to handle the matter later. If further reassurance is needed, we are, of course, available to consider the issues. On that basis, I commend the amendment to the House

Mr. Wood: I endorse what my hon. Friend the Minister has said. It took a good deal of persuasion to convince me that the amendment had some merit as against the Bill's original wording. I equally take into consideration the concerns expressed so seriously by my hon. and learned Friend the Member for Burton (Mr. Lawrence). There is a strong case to be made for looking at what may be points of detail, but most significant detail, further, and for ensuring that at the end of the day the Bill rightly produces convictions for those who should be found guilty.

Amendment agreed to.

Amendment made: No. 3 in page 2, line 45, at end insert—
'(7) This section shall have effect subject to the provisions of the Schedule to this Act in relation to a child who is in the care of a local authority or voluntary organisation or who is committed

to a place of safety or who is the subject of custodianship proceedings or proceedings or an order relating to adoption.' —[Mr. Wood.]

New Schedule

'MODIFICATIONS OF SECTION 1 FOR CHILDREN IN CERTAIN CASES

Children in care of local authorities and voluntary organizations

1.—(1) This paragraph applies in the case of a child who is in the care of a local authority or voluntary organisation in England or Wales.

(2) Where this paragraph applies, section 1 of this Act shall have effect as if—

(a) the reference in subsection (1) to the appropriate consent were a reference to the consent of the local authority or voluntary organisation in whose care the child is; and
(b) subsections (3) to (5A) were omitted.

Children in places of safety

2.—(1) This paragraph applies in the case of a child who is committed to a place of safety in England or Wales in pursuance of—

(a) section 40 of the Children and Young Persons Act 1933; Or
(b) section 43 of the Adoption Act 1958; or
(c) section 2(5) or (10), 16(3) or 28(1) or (4) of the Children and Young Persons Act 1969; or
(d) section 12 of the Foster Children Act 1980.

(2) Where this paragraph applies, section 1 of this Act shall have effect as if—

(a) the reference in subsection (1) to the appropriate consent were a reference to the leave of any magistrates' court acting for the area in which the place of safety is; and
(b) subsections (3) to (5A) were omitted.

Adoption and custodianship

3.—(1) This paragraph applies in the case of a child—

(a) who is the subject of an order under section 14 of the Children Act 1975 freeing him for adoption; or
(b) who is the subject of a pending application for such an order; or
(c) who is the subject of a pending application for an adoption order; or
(d) who is the subject of an order under section 25 of the Children Act 1975 or section 53 of the Adoption Act 1958 relating to adoption abroad or of a pending application for such an order; or
(e) who is the subject of a pending application for a custodianship order.

(2) Where this paragraph applies, section 1 of this Act shall have effect as if—

(a) the reference in subsection (1) to the appropriate consent were a reference—

(i) in a case within sub-paragraph (1)(b) above, to the consent of the adoption agency which made the application for the order or, if the parental rights and duties in respect of the child have been transferred from that agency to another agency by an order under section 23 of the Children Act 1975, to the consent of that other agency;
(ii) in a case within sub-paragraph (1)(b), (c) or (e) above, to the leave of the court to which the application was made; and
(iii) in a case within sub-paragraph (1)(d) above, to the leave of the court which made the order or, as the case may be, to which the application was made; and

(b) subsections (3) to (5A) were omitted.

Cases within paragraphs 1 and 3

4. In the case of a child falling within both paragraph 1 and paragraph 3 above, the provisions of paragraph 3 shall apply to the exclusion of those in paragraph 1.

Interpretation

5.—(1) In this Schedule—

(a) subject to sub-paragraph (2) below, "adoption agency" has the same meaning as in section 1 of the Children Act 1975;
(b) "adoption order" means an order under section 8(1) of that Act. 
(c) "custodianship order" has the same meaning as in Part [I of that Act; and
(d) "local authority" and "voluntary organisation" have the same meanings as in section 87 of the Child Care Act 1980.

(2) Until the coming into force of section 1 of the Children Act 1975, for the words "adoption agency" in this Schedule there shall be substituted "approved adoption society or local authority"; and in this Schedule "approved adoption society" means an adoption society approved under Part I of that Act.

(3) In paragraph 3(1) above references to an order or to an application for an order are references to an order made by, or to an application to, a court in England or Wales.

(4) Paragraph 3(2) above shall be construed as if the references to the court included, in any case where the court is a magistrates' court, a reference to any magistrates' court acting for the same petty sessions area as that court.'—[Mr. Wood.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 1

OFFENCE IN SCOTLAND OF PARENT ETC. TAKING OR SENDING CHILD OUT OF UNITED KINGDOM

'4A. — (1) Subject to subsection (4) below, a person connected with a child under the age of sixteen years commits an offence if he takes or sends the child out of the United Kingdom—

(a) without appropriate consent if there is in respect of the child—

(i) an order of a court in the United Kingdom awarding custody of the child to any person; or
(ii) an order of a court in England, Wales or Northern Ireland making the child a ward of court;
(b) if there is in respect of the child an order of a court in the United Kingdom prohibiting the removal of the child from the United Kingdom or any part of it.

(2) A person is connected with a child for the purposes of this section if—

(a) he is a parent or guardian of the child; or
(b) there is in force an order of a court in the United Kingdom awarding custody of the child to him (whether solely or jointly with any other person); or
(c) in the case of an illegitimate child, there are reasonable grounds for believing that he is the father of the child.

(3) In this section, "appropriate consent" means—

(a) in relation to a child to whom subsection (1)(a)(i) above applies—

(i) the consent of each person who is a parent or guardian of the child; or
(ii) the consent of each person to whom custody of the child has been awarded by an order of a court in the United Kingdom; or
(iii) the leave of that court:. 

(b) in relation toa child to whom subsection (1) (a)(ii) above applies, the leave of the court which made the child a ward of court; 
Provided that, in relation to a child to whom more than one order referred to in subsection (1)(a) above applies, the appropriate consent may be that of any court which has granted an order as referred to in the said subsection (1)(a); and where one of these orders is an order referred to in the said subsection 1(a)(ii) no other person as referred to in paragraph (a)(i) and (ii) above shall be entitled to give the appropriate consent.

(4) In proceedings against any person for an offence under this section it shall be a defence for that person to show that at the time of the alleged offence—

(a) he had no reason to believe that there was in existence an order referred to in subsection (1) above; or
(b) he believed that he had an appropriate consent.

(5) For the purposes of this section—

(a) a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person, or causes the child to be taken; and
(b) a person shall be regarded as sending a child if he causes the child to be sent.'.—[Mr. Wood.]

Brought up, and read the First time

Mr. Wood: I beg to move, That the clause be read a Second time

Mr. Deputy Speaker (Mr. Harold Walker): With this, it will be convenient to discuss Government amendments (a), (b) and (c) to the proposed new clause.

New clause 2—Power of arrest—
4B. A constable may arrest without warrant any person whom he reasonably suspects of committing or having committed an offence under this Part of this Act. '.

New clause 3—Penalties and prosecutions—
'4C. A person guilty of an offence under this Part of this Act shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum as defined in section 74(2) of the Criminal Justice Act 1982, or both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.'.

New clause 4—Proof and admissibility of certain documents—
'4D— (1) For the purposes of this Part of this Act, a document duly authenticated which purports to be—

(a) an order or other document issued by a court of the United Kingdom (other than a Scottish court) shall be sufficient evidence of any matter to which it relates; 
(b) a copy of such an order or other document shall be deemed without further proof to be a true copy unless the contrary is shown, and shall be sufficient evidence of any matter to which it relates. 

(2) A document is duly authenticated for the purposes of—

(a) subsection (1)(a) above if it purports to bear the seal of that court;
(b) subsection (1)(b) above it is purports to be certified by any person in his capacity as a judge, magistrate or officer of that court to be true copy.'.

New clause 5—Evidence—
'4E. In any proceedings in relation to an offence under this Part of this Act it shall be presumed, unless the contrary is shown, that the child named in the order referred to in section (Offence in Scotland of parent etc. taking or sending child out of United Kingdom) (1) above, or in any copy thereof, is the child in relation to whom the proceedings have been taken.'

Mr. Wood: The new clauses which I have tabled, which are intended to form part II of the Bill and relate to Scotland only, arose out of discussions in Committee. At that time, hon. Members raised certain questions about the Bill's application to Scotland and the consequences of that, and my hon. Friend the Under-Secretary and I said that we were looking at these matters, as were Scottish Ministers. There will not be time for me today to explain the new clauses in detail, but they have been discussed with Scottish Ministers and, in particular, with my right hon. Friend the Secretary of State for Scotland and my right hon. and learned Friend the Lord Advocate.
Hon. Members will recollect that in Committee we discussed the Bill's application to Scotland. A general question was raised of the extent to which the Bill applied to Scotland and, if it did, how it related to existing Scots law. Another point of special concern to hon. Members was to ensure that there was no loophole in the Bill by which English parents might avoid the provisions of clause 1 by leaving England or Wales and, via Scotland, leaving


the United Kingdom. To meet those points, especially the second one, I have tabled the new clause that we are discussing.
It was suggested that an English parent might evade the provisions of the Bill by going to Scotland and, after a short period, leave the United Kingdom. Clearly, we wish to avoid that and it is important that the Bill should be as watertight as possible. The amendments related to Scotland should achieve that. Taken together, the new clauses, if agreed, will form part II of the Bill.
The first new clause is important. It creates an offence for a parent to remove a child from the United Kingdom without appropriate consent. It is similar in many respects to clause 1 but there are differences to reflect different Scottish circumstances. The other new clauses are essentially consequential, conferring a power to arrest, setting out the mode of trial and so on.
Before I turn to the content of the new clauses, I should explain one major difference between what is provided for Scotland and what the Bill already provides for England and Wales, in case anyone should think that there has been an omission.
There is nothing in any of the new clauses equivalent to what is provided for England and Wales in clause 2 of the Bill. Hon. Members will remember that clause 1 deals with abduction of children by a parent, or other connected persons, whereas clause 2 deals with the abduction of children by third parties — what we might call straightforward kidnapping.
What is provided for Scotland in the new clauses relates only to clause 1. I am advised that there is no need for any provision parallel to clause 2 for Scotland, because that matter is already covered in Scotland by the common law. I am given to understand that much of the criminal law of Scotland remains at common law, rather than being codified in statute. No doubt Scottish Members would seek to persuade me of the advantages of that, but that is not an argument that we ought to get into this morning.
The abduction of children is dealt with in Scotland by the common law crime of plagium, which is a crime of stealing a child. The essence of that crime is of removing a child from the lawful custody of its parents, or indeed from someone else who has lawful custody of it. Technically speaking, it is an aggravated form of theft, and proceeds on the assumption that a child is the property of its parents, and that removing it is stealing. It applies to younger children, and the kidnapping of older children is dealt with at common law by the crime of abduction. As these are common law crimes, the maximum penalties are not set down in statute, but instead depend on the powers of the court before which the case is taken. A particularly serious case could be taken in the High Court where the penalties available include imprisonment for life. There is, therefore, already adequate provision in the criminal law of Scotland to cover the kidnapping of children by third parties, and I hope that hon. Members will agree that the Bill need do nothing more about that subject.
The provisions of the Bill for England and Wales are, to a considerable degree, based on recommendations of the Criminal Law Revision Committee, in its report on offences against the person. I am grateful to the committee and its chairman for the work done and help given. However, its report related only to England and Wales,

and especially to the Offences Against the Person Act 1861, which does not apply to Scotland. The criminal law of Scotland has not had the benefit of a similar review and consultation. I understand that my right hon. Friend the Secretary of State for Scotland is considering whether he should seek similar appropriate advice in relation to Scotland. What this Bill provides for Scotland may be regarded as fulfilling an immediate need, pending a more thorough review, which it has not been possible to complete in the timetable of this legislation, especially between Committee stage and today.
As I said earlier, the provisions are designed to remove a potential loophole identified at an earlier stage in relation to English parents. I hope that the House will agree that that result is achieved.
1.15 am
New clause 1 creates an offence of removing a child from the United Kingdom without the appropriate consent. It applies only to a parent or other person connected with a child, the definition of such a person being the same as in England and Wales. In addition, it applies to children who are the subjects of court orders, and the relevant orders include any order made by an English court or any order, whether an interim or substantive order, of a United Kingdom court prohibiting removal of the child from the United Kingdom or from any part of it. The consent necessary is that of the other parent or the court which made a custody order. If the child has been made a ward of court, however, the consent of the other parent is not sufficient and the court's permission must be obtained. A further important safeguard is that if the child is subject to an order prohibiting his or her removal from the United Kingdom no consent will suffice and a parent wishing to remove the child will have to seek the lifting of the order

Mr. Gordon Wilson: Will the hon. Gentleman explain the impact of these provisions in the following circumstances? First, if a child domiciled in Scotland is taken to England and a court order is obtained in England—the English courts tend to be somewhat aggressive in taking jurisdiction over parties and children over whom they should have no authority in these matters —which law would apply? Secondly, if an order of the Scottish court permitting custody of the child clashed with an English order, could the English decision overrule the Scottish decision to the extent that the child could not be taken out of the jurisdiction of a court in the United Kingdom even though there was legal authority for that to happen?

Mr. Wood: I must take care not to get into complicated battles between the English and Scottish courts. My hon. Friend the Under-Secretary of State for Scotland may be able to help in this regard. On the first question, one must bear in mind exactly where the child is and where it is domiciled at the time of the offence. If the child is in England or Wales, clause 1 would apply. If the child was domiciled in Scotland, the Scottish clause would take effect

Mr. Wilson: The hon. Gentleman will appreciate the difference between domicile and residence. If the child is domiciled in Scotland but resident in England, which law will apply?

Mr. Wood: Before pursuing that further, I should perhaps allow my hon. Friend the Under-Secretary of State


for Scotland to respond, as I believe that he has looked into the matter carefully and it is a sufficiently delicate matter to call for a ministerial response.
New clause 2 confers a power of arrest in relation to the offence. No parallel provision is necessary for England and Wales as the maximum penalties attracted to the offence by clause 4 automatically make it an arrestable offence. I am advised, however, that specific provision is needed in the case of Scottish law.
New clause 3 is also consequential on new clause 1 and sets out the mode of trial and maximum penalties for offences under new clause 1. They differ from the maximum penalties provided for England and Wales, as the latter must be high enough to cater for the case of forcible kidnapping under clause 2, which is not dealt with in the Scottish provision. Such matters in Scotland are dealt with at common law when the maximum penalty on indictment in the High Court would be life imprisonment. Therefore, the penalties in Scotland under this clause are set in line with Scottish contempt of court penalties. New clause 1, is in a sense, a contempt of court, as it applies only in cases where a court order, whether substantive or interim, has been made.
New clauses 4 and are also consequential upon new clause 1. They relate to evidence in court proceedings in Scotland and allow the judgment of a court in the United Kingdom to have what is called probative force in a Scottish court, just as Scottish court judgments already do. There is, of course, the possibility of proving otherwise if the matter is in dispute. New clause 5 creates a presumption that the child named in such an order is the child in respect of whom the proceedings are taken, thus saving the necessity of proof of a fact which will not be in dispute in the majority of cases. If it is in dispute, evidence can he led.

The Under-Secretary of State for Scotland (Mr. John MacKay): First, I congratulate my hon. Friend the Member for Stevenage (Mr. Wood) on the Bill. We all know of the heart-breaking cases that are reported in the papers or, as my hon. Friend mentioned, which are brought to us by our constituents.
It is not so long since I encountered a case that the Bill would have covered. The father had removed the children from the jurisdiction of the Scottish — or indeed any United Kingdom — court, and the mother, who was undoubtedly the aggrieved party and would have been granted custody, was therefore faced with the awful problem of having to go to the United States to try to sort the matter out.
I am delighted to say that in that case the matter was sorted out and the children were returned to the United Kingdom. Indeed, as a result of the work that was done, the couple have been reunited. That was one case in which there was a happy outcome, but that does not happen every time. Therefore, it is important that we look seriously at the matter. Great heartbreak is caused to a small number of people and great distress to the public when they read about such matters. In the words that are usually used, they feel that something should be done about it. My hon. Friend is to be congratulated on doing something about it.
May I also congratulate my hon. Friend on his speech telling us about the new clauses that will form part II of the Bill, which covers Scotland? In a previous Parliament he may well have talked himself into becoming one of the members of the Scottish Grand Committee, with his

exposition of Scottish law. But he is lucky because those days are over and English Members no longer have to listen to us in the Scottish Grand Committee. I do not know whether that once happened to you, Mr. Deputy Speaker, but I know that it does not happen now.
The Bill's application to Scotland is to cover two distinct matters. One is the case of children living in Scotland and that is covered by the new clauses that will form part II of the Bill. My hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) has apologised to me for having to leave the Chamber. However, I can tell him that the Bill will also cover the case of children taken from England to Scotland and then abroad.
My hon. and learned Friend also mentioned the case of children in care. That is not directly covered in any of the amendments, but it. may already be dealt with by the existing common law of plagium. This last issue is one that my right hon. Friend the Secretary of State for Scotland will ask the Scottish Law Commission to consider.
I may be able to answer the question asked by the hon. Member for Dundee, East (Mr. Wilson). The forthcoming report of the Law Commission on reciprocal enforcement will, we hope, deal with conflicts between court orders. I am advised that questions of domicile and residence are irrelevant in terms of the Bill

Mr. Wilson: I welcome the comments about domicile and residence, but it has been stated that there was to be a report on the problems of conflicts in jurisdiction, if any should arise. Is the Under-Secretary satisfied that, given the timespan within which the Law Commission will report, we shall not, in passing the new clause and the amendments that the Minister will move in due course, create a situation in which conflict will occur if no solution has been found by the Law Commission to sort the problem out?

Mr. MacKay: As the report is expected reasonably soon, we can leave that problem to one side.
There are only very few cases in any one year, and the number of cases which will involve conflict between United Kingdom courts will be even fewer.
As my hon. Friend the Member for Putney (Mr. Mellor) mentioned at an earlier stage, we have an opportunity to do something about the problem of children being taken abroad by a parent, and because of the pressure of legislation such opportunities do not arise very often. It would be wrong for us to wait until we can dot all the "i"s and crossed all the "t"s before we take advantage of this opportunity from a Scottish point of view of the knock-on effect of my hon. Friend's Bill.
The amendments of my hon. Friend the Member for Eastwood (Mr. Stewart) to the new clause seek to make the same changes for Scotland as have been made for England and Wales in clause 1 in respect of the burden of proof. The effect of the Scottish amendments would be the same as those agreed for England and Wales. Instead of the accused having to prove that he believed that he had the necessary consent to take the child out of the country, he need only raise the matter in the court and it would be for the prosecution to prove beyond reasonable doubt that he did not believe it.
There is no need for explicit provision to specify where the burden of proof will lie, as there has been in the amendments for England and Wales. I am advised that the


desired consequences will follow for Scotland automatically, and there is no sense in cluttering up the statute book with unnecessary provisions.
A number of hon. and hon. and learned Members have spoken on this issue and I should like to go into more detail on some of the points. Hon. Members have asked why there is no provision for Scotland equivalent to subsection (5)(a) of clause 1. The reason is that the effect of the subsection is automatically achieved for Scotland without explicit provision. The general rule, following the case of Earnshaw, is that where there is some exemption to an offence—for example, the phrase, "without reasonable excuse" — and no explicit provision as to the onus of proof, it will be for the defence to have the evidential burden of raising the matter in court, and it will then be up to the prosecution to show beyond reasonable doubt that it does not apply. There is therefore no need for a provision equivalent to clause 1(5)(a).
1.30 pm
We also discussed the provision in the English and Welsh part for the accused to claim that consent had been unreasonably withheld by the other parent. We have not included that provision in Scotland, as close examination of the two clauses shows that there is no difference. The unreasonable withholding of consent will exempt the person from clause 1 only when no court order has been granted, as provided by clause 1(5)(a). New clause 1, which applies to Scotland, applies only when a court order of some sort has been granted. Therefore, to be on all fours with the corresponding English provision, there is no need for reference to the unreasonable withholding of consent.
The amendments make similar changes to the burden of proof in the Scottish provision in new clause 1. The matter has been discussed in detail, especially in regard to the mental element in crime, which was raised by my hon. and learned Friend the Member for Burton (Mr. Lawrence), as to whether what must be proved is objective or subjective. In Scotland, when considering the mental element, Scottish courts have tended to take a rather more objective line. Those who are interested should examine the recent Scottish Law Commission report on the mental element in crime. I am advised that the effect will be substantially the same as that which we have already discussed with regard to the law in England. Amendment (c), which has been tabled by my hon. Friend the Member for Eastwood, the Under-Secretary of State for Scotland, corrects a small error. At the moment, new clause 1 does not define for Scotland what is meant by the word "guardian" as clause 1 does for England and Wales. I think that the House will agree that that is necessary. It introduces the same definition as clause 1 and is consistent with the definition in other Scottish legislation. The amendment therefore corrects a minor defect and I hope that that will be acceptable to the House.
Having explained the amendments, I am sure that the Bill will mark a considerable improvement in how we deal with children in the difficult circumstances of marriage break-ups. It will prevent some of the heartbreaking cases that we have all heard about from constituents and which the public have witnessed and read about in the newspapers

Mr. Wood: I should like to welcome the amendments tabled by my hon. Friend the Under-Secretary of State for

Scotland. The other amendments are purely the drafting consequentials of introducing the new clauses relating to Scotland. They will form part II, and approporiate reference has had to be inserted to take account of that

Question put and agreed to.

Clause read a Second time.

Amendments to the new clause made: (a), in subsection (1) leave out 'subsection (4)' and insert 'subsections (4) and (4A)'.

(b), leave out subsection (4) and insert—
'(4) In relation to a child to whom subsection (1)(a)(i) above applies, a person does not commit an offence by doing anything without appropriate consent if—

(a) he does it in the belief that each person referred to in subsection (3)(a)(i) and (ii) above—

(i) has consented; or
(ii) would consent if he was aware of all the relevant circumstances; or—
(b) he has taken all reasonable steps to communicate with such other person but has been unable to communicate with him. 
(4A) In proceedings against any person for an offence under this section it shall be a defence for that person to show that at the time of the alleged offence he had no reason to believe that there was in existence an order referred to in subsection (1) above.'.
(c), at end add—
'(6) In this section "guardian" means a person appointed by deed or will or by order of a court of competent jurisdiction to be the guardian of a child. '.—[Mr. John MacKay.]

Clause, as amended, added to the Bill.

New Clause 2

POWER OF ARREST

'4B. A constable may arrest without warrant any person whom he reasonably suspects of committing or having committed an offence under this Part of this Act.% —[Mr. Wood.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

PENALTIES AND PROSECUTIONS

'4C. A person guilty of an offence under this Part of this Act shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum as defined in section 74(2) of the Criminal Justice Act 1982, or both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.'.—[Mr. Wood.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 4

PROOF AND ADMISSIBILITY OF CERTAIN DOCUMENTS

'4D — (1) For the purposes of this Part of this Act, a document duly authenticated which purports to be—

(a) an order or other document issued by a court of the United Kingdom (other than a Scottish court) shall be sufficient evidence of any matter to which it relates;
(b) a copy of such an order or other document shall be deemed without further proof to be a true copy unless the contrary is shown, and shall be sufficient evidence of any matter to which it relates.

(2) A document is duly authenticated for the purposes of—

(a) subsection (1)(a) above if it purports to bear the seal of that court;


(b) subsection (1)(b) above if it purports to be certified by any person in his capacity as a judge, magistrate or officer of that court to be true copy.'.—[Mr. Wood.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 5

EVIDENCE

'4E. In any proceedings in relation to an offence under this Part of this Act it shall be presumed, unless the contrary is shown, that the child named in the order referred to in section (Offence in Scotland of parent etc. taking or sending child out of United Kingdom) (1) above, or in any copy therefore, is the child in relation to whom the proceedings have been taken.'. —[Mr. Wood.]

Brought up, read the First and Second time, and added to the Bill.

Clause 3

CONSTRUCTION OF REFERENCES TO TAKING, SENDING AND DETAINING

Amendment made No. 5, in page 3, line 16, after 'of', indert 'this Part of' —[Mr. Wood.]

Clause 4

PENALTIES AND PROSECUTIONS

Amendment made: No. 6, in page 3, line 25, after 'under', insert 'this Part of'.—[Mr. Wood.]

Clause 5

CONSEQUENTIAL AMENDMENTS AND REPEALS

Amendments made: No. 7, in page 4, line, after 'under', insert 'Part I of.

No. 8, in page 4, line 8, after 'Northern Ireland', insert 'or Part II of this Ace.—[Mr. Wood.]

Clause 6

ENACTMENT OF CORRESPONDING PROVISION FOR NORTHERN IRELAND

Amendment made: No. 9, in page 4, line 26, after 'to' insert 'Part I of'.—[Mr. Wood.]

Clause 7

SHORT TITLE, COMMENCEMENT AND EXTENT

Amendment made: No. 10, in page 4, line 36, leave out subsection (3) and insert—
'(3) Part I of this Act extends to England and Wales only, Part II extends to Scotland only and in Part III section 5(1) and (5)(a) and section 6 do not extend to Scotland and section 5(1), (2) and (5)(a) and (c) does not extend to Northern Ireland.'.—[Mr. Wood.]

Mr. Wood: I beg to move, That the Bill be now read the Third time.
I am most grateful to hon. Members for their patience in the scrutiny of the somewhat complicated amendments that we have looked at today. At one stage I felt like the man on the Waterloo train, surrounded as I was by so many learned hon. Gentlemen. I am grateful that I have some

Scottish antecedents and can associate myself with the concern expressed about Scotland. In this Third Reading debate I am glad to draw the objectives and effects of the Bill together into what I hope is a sensible and effective package of measures to fight the evils of the abduction of children.
I shall first place on record my gratitude to the extremely valuable and detailed work of the Criminal Law Revision Committee which, in its 14th report, drew attention to the inadequacies and antiquity of the present law on child stealing, and recommended improvements, on which the Bill is based. In the preparation of this Bill, we have been in close contact with the chairman of the CLRC, Lord Justice Lawton, who has continued to give us the benefit of his wise advice on the proper framing of this legislation, and I extend my particular thanks to him. I should also like to thank my right hon. and learned Friend the Home Secretary and my hon. Friend the Under-Secretary of State for their assistance in the preparation of the Bill. I express my deep appreciation to my hon. Friend the Under-Secretary for the time that he has taken with me in consultation, and for being here on a number of Fridays to ensure that the Bill achieves a satisfactory passage.
I am extremely grateful to all hon. Members who are here today, and to those who contributed to the most helpful and interesting debate that we held on this Bill in Committee. I am sure that all those parents who have suffered extreme distress as a result of the abduction of their children will be somewhat heartened by the approach in the House to this Bill, which has been one of integrity and sincerity that has cut across party lines in an effort to make sure that the legislation works properly and justly.
I mentioned that the amendments that we have been considering appear complex, but I think it is helpful to clarify exactly what we now have before us. This is a Bill which at Committee stage was warmly welcomed, but in which we felt that there might be three improvements to be made. The amendments that have been moved today effect those improvements. We have plugged the loophole that was acknowledged to exist in relation to a child abducted abroad via Scotland, ensured that children in care are protected from abduction in an appropriate way, and altered the burden of proof for an offence under clause 1 so that the onus of proof lies with the prosecution.
I fully understand and appreciate the concerns that have been expressed, but nevertheless I feel that, broadly speaking, we have, in terms of the burden of proof, got the matter right. There may be matters of significant detail which, as has been said, can be looked at in another place. I am most grateful to the House for its acceptance of the amendments. I think that we can now be confident that the Bill is a suitable and effective measure that will be warmly welcomed by the general public, particularly by those distressed parents to whom I have already referred.
Among the wealth of new legislation that faces us partly as a result of technological advances and partly because of changing values and mores, the Bill has the distinct merit of addressing a continuing and specific evil that no healthy society should tolerate. In fact, I shall go as far as to say that the Bill addresses two distinct evils. They are of course related, in that both a clause 1 and clause 2 offence relate to the taking away of a child, but the circumstances are usually quite distinct and it is important to recognise the need for both types of action to be properly covered by the criminal law.
It is important to recognise that the present law on child stealing contained in section 56 of the Offences Against the Person Act 1861 is defective, if I may use such a strong term, in two ways. Not only does it make it impossible for a parent to be convicted because it does not apply to a person who claims any right to the child, but it cannot be used for the particularly nasty kind of enticement of a child by a stranger where no violence or deception has been employed.
The third evil, which was not apparent before the Regina v Daley case as remaining unaddressed satisfactorily by the criminal law, is the crime of kidnapping a child. The Regina v Daley case dealt with the abduction of a child by a parent in particularly brutal circumstances, but it is important to recognise that the judgment in the case—which is subject to appeal to the House of Lords — relates also to the kidnapping of children by strangers.
In 1978 a child was taken by her father to New Zealand in circumstances that involved forced entry, the carrying of a rope, knife and alleged gas bomb, and the assistance of two violent men. The same child who had come back to England with her mother in 1979 under a custody order granted by the New Zealand courts was again snatched from her home, struggling and screaming, by her father in 1981. It was judged that there is no criminal offence of a father kidnapping his own infant known to the law and also — here I quote from The Times Law Report of 1 November 1983—
lest it should be thought that their Lordships came to their conclusions with the problems arising out of matrimonial discord only in mind, they made it clear that their decision was of general application. Accordingly it would affect a person who was not a parent and who took away a child.
So until the Bill is on the statute book we have a position in law relating to children in this country that I find unacceptable, and I think that that view is shared by the Criminal Law Revision Committee and by others who have studied the problem. If a child is removed by force against its will, it cannot be protected by the common law offence of kidnapping, which does not seem to bite on the taking of children under 16; if a child is taken without force or fraud it cannot be protected by the 1861 Act; and if a child is taken away by a parent even in the most distressing and brutal circumstances, there is no protection under the current law.
There can be no doubt that the Bill is necessary and desirable. More than that, it is vital and correctly reflects society's abhorrence of the evils that it seeks to address. I hope that when the Bill becomes law parents who live in fear that their child might be abducted will draw some comfort from the measure and that individuals who have ever contemplated taking or keeping a child away from those who have responsibility for its care will be in no doubt that the full force of the criminal law protects the most vulnerable members of our society from such activity.
In Committee and on Report we heard about instances of horrific dimensions, when children have been taken. I have stated how weak the present law is. Furthermore, there is no doubt that the number of such instances, with appalling effects, is increasing year by year. It is high time that we instituted this piece of legislation, and I commend it warmly to the House.

Mr. Bermingham: I congratulate the hon. Member for Stevenage (Mr. Wood) on an excellent and admirable Bill which undoubtedly closes a loophole in our law and sets us on the path towards trying to solve a very sad, difficult and international problem, for many cases of child abduction have an international dimension.
From the day when the Bill becomes law, children who live in the United Kingdom, who are ordinarily resident here, and who are being educated and brought up in a home in this land, will at least be safe to the extent that, if anyone seeks to abduct them and take them abroad, the person committing that horrendous offence will be subject to our criminal law and, where extradition treaties exist, can be brought back. It will be a weapon in the armoury of those who, on several occasions, have had to seek to recover children from foreign countries.
My interest in the subject began many years ago when a client of mine came to see me. Her two small children had been abducted by force and taken, with the aid of two girls, to the West Indies. Nothing could be done about the children, the husband being in the West Indies. To my knowledge, those two children are still in the West Indies today. They will by now be adults. Unfortunately, their mother did not have the means to employ detectives or lawyers in the West Indies and did not even have the means to travel out there to search for her children. She has not seen them for many years.
The ironical aspect of the case is that the two girls who assisted in the abduction were prosecuted under English law and were rightly sent to prison, because they had participated in the destruction of a family unit in Britain and in the destruction of the way of life of the children — because it is the children who are of primary importance here.
It is sad that the Bill cannot go far enough. As I mentioned earlier this morning, I have a case at present concerning a constituent. She has no hesitation in letting me speak openly and publicly of the case. Indeed, it has had the beginning of a happy solution; I can only hope that eventually it will have one. It is a classic example of what can happen.
The parents separated and the case concerns a little girl called Leila Moore. She is 12 years of age. She was brought up here all her life and attended school in St. Helens all her life until last August. For years she had gone on holiday to Turkey to see her grandmother. Her father also lived in Turkey, or so it was believed. Over four to five years consistently the child had flown to Turkey and had consistently returned at the end of the holiday. There was, therefore, no way in which my constituent could anticipate what was to happen in the summer of last year.
In July 1983, Leila went off to see her grandmother. She landed at Istanbul and went to the grandmother's place outside Istanbul. A telephone call on that occasion from the child to the mother is the last real contact that her mother has had with her. At the end of that holiday her father took her to Jeddah in Saudi Arabia, a country with which, regrettably, we have no extradition treaty at present, as far as I am aware. Despite all the efforts of our Government, and representations to the Saudi Arabian Government through our ambassador — I make no criticisms of the efforts of the Foreign Office, or of the Prime Minister, who became involved at one stage—little progress has been made and the child is still there.
The happy part of the story is that since Wednesday of this week— I am not known on all occasions for my love of the media—through the intervention of TV-am, which transmitted the story, the Saudi Government have said that they will do all that they can to help. Nevertheless, the matter had to go to such lengths for there to be any hope of recovering a child in such circumstances. I wish the Saudi Government every success in the facilities that they have offered, first, in tracing the child and, secondly, and more important, in making arrangements for the mother to go there and see her daughter.
Hopefully, she will bring the child back to her home in this country, where she was part of a family unit. The mother has remarried and there is another child of the second marriage. It is a happy family unit and all concerned are anxious that Leila should come home. As I say, I welcome the efforts of the Saudi Government to bring about a happy resolution of this tragic case, a classic example of what is happening internationally.
It has been suggested that there are 50 to 100 cases a year. The figures are much higher than that. The reality is that many more children go missing, and the problem is not confined to cases in the middle east and the far east. They are to he found in north and south America, France and Germany.
Too often, children become pawns in the battle between parents, battles that sometimes turn on property and money. Such a child becomes a pawn in forcing a solution of the problem by one parent on the other. The Bill will stop children being snatched away from this country because we shall be able to follow them to their destinations, as it were with the sanction of the criminal law, and those children will return home.
I am grateful to the Minister for taking on board my suggestion of having a direction from the Home Office to the police authorities, but the Bill must not of itself be allowed to become a weapon in the battle between warring parents. That is my only reservation about the Bill, which can be resolved by administrative direction, and for that I am thankful.
While we may have helped to solve the problem of children who are ordinarily resident in the United Kingdom and subject to English court orders when taken out of the United Kingdom, I hope that, by way of a private Member's Bill or direct legislation, the Government will consider the problem of the child on holiday. Leaving the United Kingdom in the summer of every year are thousands of children journeying abroad to visit separated or divorced parents in other lands. Those children also need protection. I hope that the example that I have given of my constituent's daughter will serve both as a lesson and as an invitation to the House to consider protecting those other children. I welcome the Bill

Mr. Rhodes James: This debate marks the end of a chapter and represents a further stage in a story which is greatly to the credit of Parliament and democracy. The story began when a couple, whose son had been abducted, came to my surgery in Cambridge in 1978. It was a long and complicated story which eventually—thanks to the intervention of the then British ambassador to the United States, Mr. Peter Jay, and the then American ambassador to London, Dr. Kingman Brewster, and others—resulted in the return of that boy to his mother. It was followed by

other cases which made me realise that I was dealing not with a few isolated incidents in my constituency but with a national problem.
Thanks to a considerable number of people—Mr. Robert Cryer, the former Member for Keighley, my right hon. Friend the Member for Cambridgeshire, South-East (Mr. Pym), my right hon. Friend the Member for Whitney (Mr. Hurd) and the right hon. Member for Wakefield (Mr. Harrison) — we devised a Bill, presented in the last Parliament, to deal with this major problem.
I had all my army organised. All the ammunition was available. The one event that I did not anticipate was the general election in June. As a result of that the Bill, which we had worked for and which had the strong support of the present Solicitor-General, then a Minister of State at the Home Office for whom no credit can be too great, the measure fell.
I was delighted that my hon. Friend the Member for Stevenage (Mr. Wood) was able to gain a place in the ballot and to take up this very important Bill. It is a remarkable achievement for a newly elected Member to carry through the House of Commons and, I am sure, through another place a piece of legislation which is wholly beneficial, is long overdue and with which his name will always be associated.
What we have always been about is simply the protection of children. My only concern this morning arose when we discussed a new clause in the course of which we seemed to be talking too much about the rights and the protection of defendants and too little about the protection of children. However, my hon. Friend the Under-Secretary of State, who has given such care and attention to the Bill, emphasised that this aspect would be borne very much in mind before the Bill went on to the statute book.
It is a story starting with one case, and then developing into others, which has involved members of all parties coming together to endeavour to remedy an evil and to protect a minority. At a time when Parliament and Back Benchers tend to be underestimated or criticised, here is an occasion when we have come together, regardless of party, to support and defend the most defenceless of our citizens.

Mr. Lawrence: It is an honour to have been invited to be one of the Bill's sponsors. There is also an honour which must be accorded to its promoter, my hon. Friend the Member for Stevenage (Mr. Wood), who with great dedication and skill has, with the assistance of a number of organisations and individuals, piloted it through the House. I ought to mention in that connection the Children Abroad Self-Help Group which has conducted a strong and influential campaign.
I also take the opportunity of congratulating the Criminal Law Revision Committee. After four years, its recommendations are more or less implemented. Too few of the recommendations of the Law Commission, the Criminal Law Revision Committee and other organisations are considered and put into legislation by the House, some for good reasons, but most for no reason other than that the House seems to be apathetic to some of the important recommendations made by those bodies for the improvement of the law. If we go on ignoring the recommendations of those bodies, it will not be long


before people of high calibre will not want to serve on them. I am delighted that these recommendations have more or less got into the Bill.
The Bill is very necessary. The increase in the divorce rate, the greater freedom of international movement, the growing number of international marriages, the increasing number of separations and the greater number of cases involving the snatching of children are important reasons demonstrating the urgent need for such a measure.
I wish to give particular importance to one. If the snatching of children in breach of custody orders and taking them outside the jurisdiction were to go on having no legal redress, the law would continue to seem to be an ass. It is important for the reputation of the law in the country that steps should be taken to make sure that those orders are obeyed. Unfortunately, foreign courts do not always recognise, let alone enforce, our court orders. That is a substantial problem, and one that has been addressed on the international scene pretty extensively, but, alas, without too much action.
There have been two international conventions. First is the Council of Europe convention on recognition and enforcement of decisions relating to custody of children, which was signed on 20 May 1980 by 15 countries, including the United Kingdom, and which applies whether there has been a kidnapping of the child or not. Second is the Hague convention on the civil aspects of international child abduction, finalised in October 1980 by the Hague conference on private international law. That has so far been signed by Switzerland, Greece, France, Canada and the United States. However, the question of Britain's signature is still under consideration, although my noble and learned Friend the Lord Chancellor has made a paper available generally for consideration by all interested parties. The ratification of those conventions by the United Kingdom is a long way off. Until they are ratified, and effect is given in other countries to decisions by the British courts, this Bill in particular is only a very partial solution of the problem.
Although it is an important Bill, not too much should be expected of it. Problems arise even out of this Bill itself. There is the problem of extradition. It is unsatisfactory that the Bill will have no practical effect outside this country in any country that does not extradite our criminals. There is also the problem of abduction outside the jurisdiction, and the particular problem of abduction in Scotland which, as the Minister said, is only partly repaired by the Bill.
One other important outstanding matter is that the judicial decisions of the English courts are not automatically enforceable by the jurisdictions of Scotland and Northern Ireland. Some work must be done on that matter. In answer to a question that I asked of the Government in 1982, I was told that a joint working paper was published in 1976, and that the final report and the draft Bill were being prepared. That was in 1982. When I asked again on 12 May 1983, I received this reply in a letter from the then Minister of State:
The Commission's work on these issues is in its final stages. Their proposals will be embodied in a final Report accompanied by a draft Bill, which should be submitted to the Lord Chancellor in the near future.
That was nearly a year ago, and still nothing has happened. I do not know whether it is unparliamentary language to

suggest that someone somewhere should remove a digit, but it is time that something was done to speed the repair of that particular breach in the enforcement of the orders.
I wish to delay the Bill not one moment longer. I think there is great merit in a Bill which provides the police with a little more encouragement to enforce the law, because they react more actively to criminal law than they do to civil law. It may therefore stop some children from being taken out of the jurisdiction in the first place. There is also great merit in having a criminal law which can be used as a shot to be fired across the bows of an excited parent who is thinking of taking a child out of the jurisdiction in breach of court orders and thus is about to cause great distress all round.
I congratulate everyone concerned with the Bill, and I hope that it has a speedy passage through the other place, but I also trust that proper consideration will be given to the burden of proof point which I raised on amendment No. 11.

Sir Nicholas Bonsor: I, too, wish to detain the House as little as possible. However, I have three brief points to make. I join my hon. and learned Friend the Member for Burton (Mr. Lawrence) in warmly congratulating my hon. Friend the Member for Stevenage (Mr. Wood) and, in particular, my hon. Friend the Member for Cambridge (Mr. Rhodes James), on all the work that has gone into preparing the Bill and on remedying at last a clear and appalling oversight in the defences under the English criminal law. It has been described as bizarre that neither the crime of kidnapping nor the Offences Against the Person Act 1861 in any way protect children in certain circumstances against being taken away from those who have their legitimate custody.
I have three reservations about the Bill, and I hope that my hon. Friend the Minister will consider them carefully. My first reservation concerns new clause 11. I apologise for the fact that I was not here for the whole of the discussion on that new clause, but I was abducted by my children so that I could give them baked beans in the canteen downstairs. Thus, I am not sure how far this point has already been dealt with. Nevertheless, I am not entirely happy with the width of defence made available under that clause or with the way in which it has been worded so that any "belief' affords a defence to someone who has taken away a child. As that is an entirely subjective test, as my hon. Friend the Minister said, it is something entirely within the defendant's mind. I would rather see the provision made more widely criticisable by the court, and would rather have the word "reasonable" inserted. People would then be entitled to consider not only whether the person had that belief, but whether he or she reasonably had it. Therefore, I hope that the Government will consider that further.
Secondly, the Bill only provides a criminal sanction against one or other parent who wrongly takes a child abroad, and does not do anything to prevent abduction by one or other parent within the bounds of this country. I appreciate that, within that jurisdiction, the civil courts have a remedy, and can issue a warrant for contempt and bring the person concerned to justice, but it is a much more laborious process than that involving an arrest. Therefore, I hope that the Government will consider that further, and see whether some criminal sanction should be included at that level.
Thirdly, I notice the distinction between clauses 1 and 2 in relation to the detention of children. In clause 2, the offence is committed if somebody,
without lawful authority or reasonable excuse, … takes or detains a child under the age of sixteen".
However, under clause 1, which relates to parents taking children out of the United Kingdom, the phrase is anyone who
takes or sends the child out of the United Kingdom".
That point was raised earlier by the hon. Member for St. Helens, South (Mr. Bermingham), and I agree that it may well be that the abduction, in so far as it occurs, could occur outside the United Kingdom in the first place. If I read the legislation correctly, if that should occur, no offence is committed. I should not have thought that it would be very difficult to add the words, "or detains" to clause 1 so as to embrace that offence, or to make that act an offence.
This has been an immensely complicated Bill and I cannot congratulate those involved too warmly. I recommend the way in which it has been put together, and I have no doubt that the House will warmly endorse it.

Mr. Gary Waller: I shall detain the House for only a moment. I congratulate my hon. Friend the Member for Stevenage (Mr. Wood) and also endorse what was said by my hon. and learned Friend the Member for Burton (Mr. Lawrence) about the work of the Children Abroad Self-Help Group.
That organisation was started in Keighley. As an illustration of the support for the Bill, I must tell the House that my predecessor, Mr. Bob Cryer, was also involved in this matter. The founder of the group is a Mrs. Jean Burt, and the value of the Bill can be shown by her case. Her child was snatched and it cost her and her second husband £10,000 to retrieve the child. Until the Bill takes effect three months after it becomes law, there will remain the risk that that child could be snatched again. Thanks to the efforts of my hon. Friend, other hon. Members and the many people to whom reference has already been made, that risk will diminish.
The work of the Children Abroad Self-Help Group will continue. Unfortunately, for many children and parents the Bill has come too late. There is still a great deal of work to do. It is a tribute to my hon. Friend and many others that future instances of abduction will be fewer than in the past.

Mr. Alfred Dubs: I, too, wish to congratulate the hon. Member for Stevenage (Mr. Wood) on having successfully piloted the Bill to its present stage. I wish him all success in its future stages in another place.
I am grateful to the hon. Gentleman and to the Minister for taking note of various points made in Committee. Judging by the complicated amendments, they went to a great deal of trouble to meet those points, especially the point about children in care. Of course, there are bound to be a number of loose ends. The question of extradition has already been mentioned, and I can only add my voice to the plea that we should consider again our extradition arrangements, especially for children, to try to make the Bill bite more in those countries with which we currently do not have extradition agreements.
It is astonishing to realise that the Bill fills such an obvious gap in the law. I suspect that many people who

have never had direct experience of what can happen when a child is abducted must be astonished that in 1984 the House is having to pass a law that they probably thought existed from time immemorial. Until I experienced a constituency case three or four years ago, to which I referred in Committee, I had no idea that there was such a gap in the law.
Although the Bill is not and cannot be watertight, and children will be taken out of the country despite the law, the Bill states clearly the views of the House and the overwhelming majority of people in Britain, it clearly states the law and it ensures that there is a better chance of children not being taken out of the country. Therefore, it must be welcomed. It would be foolish of us to spend time delaying the Bill in an attempt to tighten up the one or two possible loopholes. That must be for another day.
I am sure that my hon. Friend the Member for Stevenage will appreciate that I was concerned that the Juries (Disqualification) Bill that we discussed earlier might in some way delay this worthy measure. I had no wish in any way to jeopardise the passage of the Bill. I see that the hon. Gentleman is nodding, and I am glad that he understands my point.
Taking away children against their wishes and the wishes of the parent who has custody is one of the vilest deeds imaginable. I have seen letters written by children abroad who had been taken away from their mother. Those letters had an air of desperation, helplessness and hopelessness, the like of which I have not seen in any other letters that I have received while a Member of Parliament. It is for the sake of such children that it is important that the Bill goes through. I wish it every success in getting on to the statute book.

Mr. Mellor: It is a real pleasure to follow the hon. Member for Battersea (Mr. Dubs) and I agree with everything that he has said. A pleasant feature of the Bill's passage has been the all-party support for it. It is also impressive to note that it has not been unquestioning support. Everyone has wanted to get this right and there have been useful discussions of detail. My hon. Friend the Member for Stevenage (Mr. Wood) showed himself to be extremely obliging in responding to the points raised both in Committee and in the Chamber.
My hon. Friend has rightly been praised for picking up the torch unexpectedly knocked out of the hand of my hon. Friend the Member for Cambridge (Mr. Rhodes James) by the general election last June. I echo the words of my hon. Friend the Member for Cambridge in saying that the Bill has been a formidable achievement for my hon. Friend the Member for Stevenage. In the first Session of his first Parliament he has piloted through the House not just a small, technical Bill but a full-scale reform of part of the criminal law. It must be a very long time since an hon. Member has piloted through the House, at such an early stage in his parliamentary career, a measure of such magnitude which, I am confident, will remain on the statute book for many years to come. My hon. Friend will be able to look back on it with pride. The aplomb and panache with which he has handled the debates belie his lack of seniority in the House and he and his constituents can be very proud of what has happened today.
The confused tangle of common and statute law was more than ready to be swept away. As the hon. Member for Battersea has said, it is astonishing that that had not


already been done. I hope that between us we have got this right. My hon. Friend and I will certainly reflect on the points that have been made today so that if there is substance in them appropriate amendments can be made in another place. We certainly take the criticisms in the helpful spirit in which they were intended.
The crucial issue is that for the first time a child, whether it be at home with a parent or guardian, in a local authority home pursuant to a care order, in a home run by a voluntary society, or in a foster home, will be protected from having its rights violated and its future potentially ruined by the selfish act of an adult who, instead of putting the child's interests first, puts his own selfish interests first. If something is done to prevent some of the heartbreak cases of which we have heard, it will be a step in the right direction. The Bill will certainly help. The fact that seven years' imprisonment is now the maximum sentence for such offences will be a deterrent. The Bill will also enable the police to act more quickly. It will not, of course, eradicate the problem completely. I am sure that people will still act foolishly in some circumstances. As has been said, more will need to be done.
It should be noted that the Bill rightly goes wider than dealing with parents who abduct children whose custody they have lost. It also embraces the mercenaries—the unpleasant people who are prepared to be a party to such things in return for money. It also covers those who, for a variety of reasons, seek to take children away for purposes which may or may not be sexually based but

who, although they have plainly committed an act that most of us would regard as criminal, can now escape scot-free.
To illustrate the comprehensive nature of the protection given to children by my hon. Friend's Bill, I remind the House briefly of the case of Jones, in which a 40-year-old man met two 10-year-old girls at the local swimming baths, travelled with them on the bus, paying their fares, and suggested that they should go for a walk with him. He told the girls to go home and change and meet him later, when he would give them more sweets. Fortunately, the parents were suspicious and the police went to the spot where the man was waiting. He readily admitted that he had intended to take the girls for a walk in order to assault them sexually. Unfortunately, the act was not sufficiently proximate to be an attempted indecent assault so the prosecution had to rely on section 20 of the 1956 Act, which prohibits an adult taking a child out of the possession and against the will of the parent. But the court heard that that conduct was not a sufficiently substantial interference with the possessory relationship between parent and child. As a result, there is a gap in the law.
Clause 2 deals with that and means that the nuisances who can sometimes take an unhealthy interest in small children will also be brought to book under the Bill as was recommended by the Criminal Law Revision Committee and as is right. The Bill is a comprehensive measure that has been rightly applauded and I am sure that I speak for the House when I wish it a speedy passage to the other place.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

Immigration Offences (Amendment) Bill

Order for Second Reading read.

Mr. Ivan Lawrence: I beg to move, That the Bill be now read a Second time.
I begin by paying tribute to my hon. Friend the Member for Dudley, West (Dr. Blackburn) who cannot, unfortunately, be here to move the Second Reading of his Bill. He has been ill but the House will be delighted to hear that he is well on the road to recovery and we look forward to seeing him, perhaps before the Bill completes its passage through the House.
The Bill deals with a specific but important detail of immigration law. The first impression of hon. Members may be that it seeks an obscure technical change to little obvious effect. In fact, it is of considerable practical importance for the efficient administration of immigration control.
The Bill deals with overstaying—that is, remaining in Britain for longer than the period for which authority has been given. Under section 24(1)(b)(i) of the Immigration Act 1971 a person commits an offence if he has only a limited leave to enter or to remain in the United Kingdom and knowingly remains here beyond the time limited by that leave. On conviction of this offence, as with other offences punishable with imprisonment, the court may recommend the person for deportation.
The Act also provides for the administrative deportation of overstayers without recourse to the courts. It is clearly crucial to any system of immigration control that effective sanctions should be available in cases in which people are admitted for temporary purposes but then refuse to go when their authority to remain has expired. Prosecution is one of the sanctions envisaged by the 1971 Act, but its effectiveness has been considerably reduced by decisions of the courts in interpreting section 24(1)(b)(i). The Bill seeks to restore the provision that was believed to exist when the 1971 Act came into force.
The crucial question is whether the offence of overstaying is a continuing one—that is to say, whether an overstayer continues to commit an offence throughout the portion of his stay in Britain which follows the expiry of a limited leave to enter or remain, or whether the offence is more limited than that.
Before the 1971 Act was passed there was no doubt that overstaying was a continuing offence. Section 4(1) of the Commonwealth Immigrants Act 1962 and article 5(5) of the Aliens Order 1953 both state explicitly that an offence is committed throughout the period during which a person remains after the expiry of a limited leave. Section 24(1) (b)(i) of the 1971 Act does not include an explicit statement along those lines, but it is arguable that an offence committed by an act of remaining is by strong implication one that must continue. There is certainly no sign in the record of the debates in the House on the 1971 Act that anyone supposed that any change was intended.
However, the position was changed in 1973 by the decision of the Divisional Court in the case of Gurdev Singh. Largely because section 24(3) of the 1971 Act, read in conjunction with section 28, provides an extended time limit of up to three years for the prosecution of overstayers, the court decided that the offence could only be committed on a single day.
Of itself, the decision in Gurdev Singh did not greatly hinder the ability of the police to prosecute overstayers. Provided that the case was brought within three years of the expiry of leave, the charge could say simply that the offence was committed at some point between that date and the date of the overstayer's detection. But severe practical difficulties followed the later judgment given in the other place in April 1982 in the case of Grant v Borg. It was then ruled that the offence could be committed on the day after a person's limited leave expired, and on that day only. The police now have to prove that the person knew on that specific day that he was overstaying.
There are broad categories of overstaying cases in which prosecution is now difficult or even impossible. There are particular difficulties if the person has appealed against a refusal to grant him further leave to remain. Since he is not required to leave the country until his appeal has been decided, which may be a long time after his original leave expired, it can clearly be hard for the police to show knowledge of overstaying on the relevant day. There are also problems when a person has been dealing with the Home Office through an agent, or when his leave has been extended automatically by the Immigration (Variation of Leave) Order 1976 while a further application is considered. It cannot always be shown satisfactorily that the person was precisely aware of his position on the single day which is now relevant.
It may be argued in answer to all this that if the cases of particular individuals do not meet the criteria required by the courts, so be it—they should not be prosecuted. The provisions for administrative deportation under the Act can always be used against any overstayer, irrespective of his knowledge on the day after his leave expired or the length of time that elapsed before his detection. The power to prosecute is, therefore, some might say, superfluous. My reply to that is that this was not the view the House took in 1971 in passing the Immigration Act. It is plain that the Act envisages prosecution as the appropriate response to wilful overstaying, and there is no reason why the clear intention of the Act should be frustrated by a technical problem of this kind. In the final analysis, the remedy for overstaying is removal from this country, whether it be by administrative deportation or on the recommendation of a court; but the deterrent value of conviction and sentence should not be dismissed.
Administrative deportation has the disadvantage that it is a much slower and more cumbersome procedure than deportation on the recommendation of a court. It also involves an important and immediate practical difficulty. Under the powers of administrative deportation it is difficult to apprehend an overstayer. While the police may arrest an overstayer whom they intend to prosecute, and he is liable to be detained after a court has convicted him and recommended him for deportation, a special detention order must be signed by the Home Secretary if it is necessary to hold a person who is to be deported administratively before a deportation order is made. Thus, when the police or immigration service question a person to find that he is an overstayer who is not prosecutable, but no detention order has been made against him, they must let him go. And, of course, it is not surprising if people who have contrived to evade detection for a substantial period gratefully take their chance and go to ground once more. As things stand, it is often those cases of lengthy


overstaying in which prosecution would seem to be most appropriate that cannot be taken to court. For the Home Office, prosecution is quicker, easier and more certain.
Hon. Members will have noticed that this is a very short Bill, comprising only two clauses. Subsection (1) of clause 1 amends section 24(1)(b)(i) of the Immigration Act to state specifically that overstaying is a continuing offence. Subsection (2) removes overstaying from the list of immigration offences with an extended time limit for prosecution, which seems unavoidable in the light of the Divisional Court ruling in Gurdev Singh; and subsection (3) ensures that the effect of the changes will not be retrospective. Clause 2 is concerned wholly with citation, commencement and extent.
This is clearly a most important change in the law that has been brought about by an unforesseable change in the immigration rules as the courts have interpreted them. I commend the Bill to the House as a simple and straightforward measure that will restore what was envisaged by the 1971 Act and contribute significantly to efficient enforcement of a matter which is important to all right hon. and hon. Members—immigration control.

Mr. Alfred Dubs: Mr. Deputy Speaker—

It being half past Two o'clock, the debate stood adjourned.

Debate to be resumed upon Friday 27 April.

Orders of the Day — Private Members' Bills

REPRESENTATION OF THE PEOPLE (ELECTORS ON HOLIDAY) BILL

Order for Second Reading read

Mr. Deputy Speaker: (Mr. Harold Walker): Not moved.

EUROPEAN HUMAN RIGHTS CONVENTION BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 6 July.

SOCIAL SECURITY (COLD CLIMATE ALLOWANCE) AMENDMENT BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 6 July.

PREVENTION OF IMPRISONMENT (FINE DEFAULT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 6 July.

WORKING CONDITIONS OF GOVERNMENT TRAINEES (No. 2) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 6 July.

MARKS OF ORIGIN BILL

Order for Second Reading read

Mr. Deputy Speaker: Not moved.

MARKING OF GRAVITY (BEER AND LAGER) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 27 April.

CONCESSIONARY TELEVISION LICENCES FOR STATE RETIREMENT PENSIONERS BILL

Order for Second Reading read

Mr. Allen McKay: I beg to move, Sir, as I regret that the Government have not yet had time—

Hon. Members: Object.

Second Reading deferred till Friday 27 April.

LOCAL AUTHORITY (STANDARDS OF SERVICE) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 6 July.

COMPANIES BILL

Order for Second Reading read.

Mr. Deputy Speaker: Not moved.

RIGHTS OF LONDONERS BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 27 April.

CRIMINAL TRESPASS BILL [LORDS]

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 27 April

Youth Training Scheme

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Garel-Jones.]

Mr. Alfred Dubs: The subject of this debate is the proposed cuts in mode B1 places on the youth training scheme which was established by the Manpower Services Commission in September 1983 as a successor to the youth opportunities programme.
The scheme offers a 12-month programme of training, work experience and education to all 16-year-old school leavers, whether employed or unemployed, and unemployed 17-year-old school leavers. By the end of December 1983, some 440,000 training places had been approved, a further 9,300 were firmly anticipated and more than 250,000 young people were in YTS training.
There are two types of funding under the scheme—mode A and mode B. Mode A is provided by employers who receive a grant for each trainee. Under mode B, the MSC makes grants available to sponsoring organisations that run schemes such as community projects, training workshops and work skills courses which offer places to unemployed trainees. Mode B is subdivided into mode B1 and mode B2. Mode B1 covers community projects, training workshops and information technology centres, and is the main subject of this debate. The mode B2 schemes are provided by colleges.
Of the young people in training at the end of December 1983, 71 per cent. were in mode A training, 21 per cent. were in mode B1 training and 27 per cent. in mode B2 training. The total number of entrants, which is not the same as those in training, into the YTS by the end of January was 325,000, compared with 284,000 at the end of November and 304,000 at the end of December. There were about 20,000 entrants to the scheme during December and a similar number during January. Therefore, it is misleading for the Government to quote occupancy figures for the end of December as if this represented a static demand, when demand has rapidly been increasing month by month.
The real bombshell came last December when, after only four months of the mode B1 scheme operating, the Secretary of State for Employment announced that he intended to reduce figures substantially from the 89,000 mode B1 places that had been approved. After some discussion and toing and froing, the Secretary of State eventually settled for a reduction to 70,000, a loss of 19,000 places, although he had earlier attempted to reduce the figures to 60,000. It is the difference between the 89,000 and the 70,000 that is partly the subject of the debate.
I have two concerns. One is about the effect of the overall reduction in the scheme, and in the mode B1 places nationally, and the other is about the effect of these reductions in the Wandsworth area. However, I shall first meet the charge that the reason why mode A seems preferable to the Government in comparison with mode B1 is that, the Government say, mode B1 is more expensive. On examination, this is not borne out by the facts. It is not true if the comparison is the cost of training an unemployed trainee in the two modes.
If, under mode A, an employer takes on three unemployed people for every two trainees that he would normally employ, he will receieve five times £1,950—


or £9,750 — as support, and this is the so-called additionality rule. As only three of the trainees are unemployed, the comparative cost is £3,250 per unemployed trainee taken on under the scheme. For budget purposes, the cost of the mode B training is usually given as £3,500, so there is little difference in cost. If the Government are using that as an argument, I suggest that they should not do so, although they may wish to suggest a different reason.
The effect of the Government's reductions has been widespread. The mode B1 scheme is run by local authorities, voluntary organisations, of which community service volunteers are a part, and of which the Young Men's Christian Association and the National Association for the Care and Resettlement of Offenders are among the largest. I have had representations from a whole range of organisations that are concerned about the effect of the scheme. I shall illustrate this by giving a few examples, but I could take up all the time available to me with the many examples.
Community service volunteers in 10 YTS schemes are being asked to take cuts averaging 23 per cent. in numbers. For example the Strathclyde scheme is to be cut from 165 to 120 trainees, and there is to be a 33 per cent. cut in south London. The YMCA is particularly upset that its "training for life" scheme is to be cut by 773 places. That cut affects schemes that it has all over the country. Youth Aid has also complained about the cuts in its schemes. For example, it has a scheme in Doncaster with 125 trainees which is fully occupied with a waiting list and is facing complete closure.

The Minister of State, Department of Employment (Mr. Peter Morrison): Did the hon. Gentleman say "Youth Aid"?

Mr. Dubs: Youth Aid informed me that a project called Metro Action in Doncaster had that number of trainees, and faced closure by the end of March.
There is also a threat to the Brixton Young Family Housing Aid Association. There is such a scheme in a disadvantaged area of Lambeth, and cuts are being made. The project caters entirely for black people. It is run by a black community organisation. A scheme in Skelmersdale new town called Tomorrow's People Today also faces cuts.
NACRO has been particularly hard hit. Its schemes cater for offenders and people who are particularly disadvantaged. Those schemes have been successful. It has a scheme in Lewisham, which faces closure. There are schemes in north-east London that face significant cuts. There is a scheme in Durham, where a cut from 90 to 30 places is proposed. There are schemes in Pontefract, Wakefield, Lambeth, Gwent, Haringey and Hull.
In all those areas, those schemes provide places for some of the most vulnerable people in society. Their record is that a significant number of people on them are rehabilitated from having been offenders, get jobs and go straight. If the cuts mean that the individuals who are now on schemes will no longer be able to stay on them and similar people will no longer get places, we shall be transforming a saving from one Department into a major increase in expenditure in the Home Office's law and order budget. It costs a great deal more to keep a young offender

in custody than to keep him on such a scheme. The cost to society is immeasurably greater. That is a short-sighted attitude by the Government

Mr. Martin Stevens: I am sorry that I was not here at the beginning of the debate. If, as I suspect my hon. Friend the Minister will say, the reduction in places for mode B youth training scheme operations is designed not to save money but to reflect the anticipated fall in demand, does the hon. Gentleman agree that it would be reasonable to apply some flexibility, so that when in his case and my case in Fulham the demand is manifestly there we would not have to cut?

Mr. Dubs: That is the Government's other argument. With regard to the national cuts, the difficulty is that the mode B1 scheme has existed for only a short time. There are some unoccupied places on the schemes, but bearing in mind the nature of the schemes, the nature of the people and the increase in numbers coming on to the schemes, it is short-sighted to say that, because certain schemes do not have full occupancy by a certain date, they should be cut.
I shall give some examples from Wandsworth. A week and a half ago I took part in the deputation to the Minister that included Wandsworth councillors. The concerns in Wandsworth go right across the political spectrum. The deputation included the deputy leader of the council, Councillor Heaster, as well as all three Members of Parliament of both parties representing constituencies in Wandsworth. Although that deputation would not agree with my criticisms of the national cuts, those on it are particularly concerned about their effect on Wandsworth.
Wandsworth has a number of successful mode B1 schemes. They are successful because of the way they operate now and because they got off the ground more rapidly than schemes in many other parts of the country. I have many disagreements with the council on a range of political issues, but in this case it backed those schemes whole-heartedly. Its expenditure this year is planned to be over £400,000 on the schemes. Some of them employ a very large number of young blacks and altogether, by any standards, the schemes have been particularly successful.
Under the Manpower Services Commission's plans to implement the Government's cuts, it is now proposed that, instead of a national average cut of about 20 per cent., the cut in several places in Wandsworth should be 45·8 per cent. That is a very savage cut.
It is proposed that there should be a cut in the Wandsworth Spectrum, a NACRO scheme, from 65 to 45 places. Wandsworth council has a playleaders scheme and the MSC proposes that it should be closed altogether. In my constituency, at the St. Ann's training workshop, it is proposed that the 60 places should be taken away and that the whole scheme should be closed. That scheme is fully supported by Wandsworth council. The training workshop in Tooting will stay, but at the training workshop in Putney it is proposed that there should be a reduction in places from 40 to 30. Of course, there are some levels of under-occupancy on the schemes, as there are on all schemes, but they are very slight. In the case of the Wandsworth Spectrum, the NACRO scheme, there were difficulties in getting staff, and that resulted in some shortage of numbers but, nevertheless, by all standards the schemes are judged to be particularly successful.
In London south-west area, mode A occupancy is 40 per cent., mode B1 occupancy is 59 per cent., and mode


B2 is 58 per cent. Judged by those standards, the schemes in Wandsworth are particularly successful, are doing well and should not be cut.
Currently in Wandsworth 1,202 young people are registered as unemployed at careers offices, in addition to the estimated 1,400 school and college leavers in 1984 eligible for youth training schemes. Unfortunately, many of the existing places will not be immediately available for 1984 leavers, as they will be occupied for a further six to nine months. Furthermore, the change in age for the young workers' scheme eligibility from 16 to 17 will mean an increased demand for youth training scheme places.
It is not possible, as the Minister has suggested nationally, that mode A employers can absorb the reduction in mode B. They cannot do it in terms of numbers or of the type of people. Wandsworth is simply not the sort of area where there are enough mode A employer-based schemes to cope with the additional burden imposed by those reductions.
The Wandsworth training workshop has a 90 per cent. occupancy. The threat to close it entirely—I visited it some time ago—has shocked many local people because it goes right against the Minister's statement that the reductions will be in unoccupied places. There is a very heavy occupancy of the places in Wandsworth training workshop, and, in the view of all the people in Wandsworth who have looked at it, it is neither necessary nor desirable to remove occupied places in the way that the Minister has suggested. It would cause severe disruption to the 54 young people who are on the scheme. It would cause redundancies for 12 highly skilled and motivated members of staff, and it would in addition impose a continuing financial burden on Wandsworth council of £80,000 for the remaining two years of the lease of the premises.
However one looks at the question, it makes no sense to close a workshop with a 90 per cent. occupancy when there are 15,000 approved places already under-occupied, even if we accept the Government's overall policy, which I certainly do not accept. Wandsworth council has played its part in trying to help the Government's proposals along as best it can by retaining the places, and by absorbing the 24-place playleaders scheme as a mode A scheme instead of its being a mode B1 scheme.
Wandsworth council, with all-party support, has been suggesting that the cuts in occupied places as proposed in Wandsworth are unacceptable, and that in particular the Wandsworth workshop, with its high level of occupancy, should remain open.
I cannot understand the thinking underlying what is happening, either in Wandsworth or nationally. Wandsworth is facing a cut in places of twice the national average. In other words, Wandsworth is being punished because it has done better and has got more schemes off the ground and got them occupied.
The Government should think again about the cuts generally because they are hitting some of the most disadvantaged young people, including young blacks, who are vulnerable and who will not find alternative employment or training opportunities. They are hitting the many organisations which have devoted much effort to getting worthwhile schemes off the ground. The cuts in Wandsworth are without justification, remembering that the area has some widely supported and excellent schemes. I appeal to the Minister to think again.

The Minister of State, Department of Employment (Mr. Peter Morrison): I am grateful to the hon. Member for Battersea (Mr. Dubs) for raising this issue. He said at the outset that the youth training scheme was the successor to the youth opportunities programme. I hope that he will agree that the YTS is differently based in that the YOP was a special employment measure. The YTS is specifically a training scheme, and it is in that context that I hope that we can conduct the debate.
I appreciate that the hon. Gentleman feels strongly about the general policy—the mode B1 provision as a whole—and about the specific policy as it relates to his part of London. He and his hon. Friend the Member for Tooting (Mr. Cox), my hon. Friend the Member for Putney (Mr. Mellor), who is the Under-Secretary of State for the Home Department, and their councillor colleagues came to see me to discuss the particular aspects of the area and mode B1 as related thereto. I hope that he will freely admit that I and my officials listened carefully to what was said. I shall return later to the hon. Gentleman's points about Wandsworth.
The YTS is about training and, as I said, it is not a special employment measure. It is primarily employer-based. We have always agreed, across the Floor of the House, that that should be the case, and there has been that acceptance also throughout the Manpower Services Commission, on which are represented leaders of industry as well as trade unionists and educationists.
That is not to say, even though it is an employer-led scheme, that there is no need for the mode B1 type provision. There is such a need because some youngsters will benefit more from that sort of provision of training than from mode A. Equally, other youngsters will benefit more from the mode A type provision.
I find it regrettable—I hasten to say that it has not come from the hon. Member for Battersea — that in some quarters there is a rather patronising outlook towards some of the less able youngsters when it is said that they cannot get on to mode A schemes or that they are not appropriate when, in many cases, they are very appropriate indeed.
We and the MSC must set out to provide as wide a variety of schemes as possible to ensure that a sufficient choice is available; in other words, to ensure that we have sufficient round holes into which the round pegs will go. But—and here I come to the nub of the general point that the hon. Gentleman made—at present we have in the mode B1 provision 90,000 approved places with 55,000 filled, leaving a gap of 35,000. The cost of an unfilled mode B1 place is about £2,000 per annum. That is more than the cost of a filled mode A place; and an unfilled mode A place costs about £100 per annum.
Therefore, with a gap of 35,000 and a cost of about £2,000, taxpayers' money up to—I am not saying that this is the case, but it is up to—£70 million is being spent on training nobody. I hope that the hon. Gentleman will agree that it was not Parliament's wish to use the large sums of money voted to the youth training scheme to train no one. The money is there to train youngsters.
The hon. Gentleman will appreciate that the youth training scheme is a locally delivered scheme. It would not be practicable, sensible or constitutionally correct for me to intervene directly in every decision, whether it was in Wandsworth, or Liverpool or anywhere else. The


members of the 54 area manpower boards, to whom I pay tribute—they have done a very good job over the past year in difficult circumstances because a lot of decisions had to be taken in a hurry—are there to advise, given their obvious knowledge of local needs, the availability of managing agents and so on.
However, the line management is such that the area manpower boards are serviced by area managers. They are responsible to regional directors, who in turn are responsible to the chief executive of the training division. He in turn is responsible to the director of the Manpower Services Commission, who in turn is responsible to the chairman of the commission. He in turn is responsible to me and to my right hon. Friend the Secretary of State, who are accountable to the House for the operation of the scheme.
Every area manager—there are 55 of them and 54 area boards — will put forward proposals to his area board in the context of the general, agreed policy which, in respect of mode B 1, was for up to 70,000 approved places. That is their remit, and they will be working out the balance between mode A and mode B schemes in their areas. There will be a different balance in different areas because of the different needs of the areas.
I do not want to give the hon. Gentleman the impression that, as Minister of State responsible, I am opting out. If specific matters are raised by hon. Members about any scheme or any balance of schemes in any part of the country, I am happy to look at them. But at the end of the day it is for the area manpower board members to decide their priorities within the general policy guidelines.
I cite the position in Liverpool as an example. I have looked at it carefully because the needs of youngsters there are similar to those of youngsters in inner London. I spent four hours one Saturday morning with five of my officials going through every detail of the proposals which the two area managers put forward.
At the moment in Liverpool we have 6,112 approved places. At the end of February we had about 3,650 occupied places. That is a large gap. It is planned that there should be 4,830 mode B1 places in the two areas—Merseyside inner and Merseyside outer.
The average occupancy rate of mode B1 in Wandsworth since the scheme started has been just over 60 per cent. The proposals are that for 1984–85 the current provisions should be cut by 34 per cent. Contrary to what the hon. Gentleman said, there are sufficient mode A schemes available, and that provision appears to be perfectly reasonable.
On 11 April there is to be a special meeting of the area manpower board to discuss these proposals. Prior to that

meeting, I do not believe that it would be appropriate for me to make any comments which might pre-empt its outcome.
Suffice it to say that in Wandsworth, mode A provision covers and will continue to cover all the occupational areas provided under mode B1 in the borough currently except for gardening, which will continue to be provided by one of the training workshops, and electronics, which will be provided by the proposed ITEC. Developments in mode A provision this year include new courses in audio-visual equipment operation and design, electronics assembly and engineering, sports and community service. The context of mode A will be taken into account when decisions come to be taken.
There are those around who wish to knock the youth training scheme. I do not suggest for one moment that the hon. Gentleman did that. It is apparent that he is as concerned as I am that the YTS should work to the good of the youngsters. However, there are the knockers, those who are described as the true readers and writers of The Guardian, who apparently wish to see it fail. I believe strongly that they are completely out of step. Only this morning, as the hon. Gentleman stated in his speech, over 250,000 youngsters went to their schemes on a voluntary basis, and they did so enthusiastically. I have visited many of these schemes, and I have talked to thousands of trainees in all parts of the country. There is no doubt that the trainees believe that what they are getting will be of great value to them in their future working lives. When the knockers suggest that the scheme is not working, I suggest that they are being irresponsible, because they may be sowing a seed of doubt in the minds of this year's school leavers, and that seed of doubt may preclude them from going on to a scheme which will be of as much benefit to this year's school leavers as it was to those of last year.
A small sample of those leaving the scheme up to the middle of November has shown us that, three months later, nearly 40 per cent. were in jobs, nearly 30 per cent. were in other youth training schemes, and approximately 25 per cent. were unemployed. Of the 25 per cent., some will be waiting for a job, some will be waiting to go into further education of some sort or another, and some will be waiting for another scheme. At this stage—it is but a small survey, and all the information is not yet available, because many have still to complete their scheme—the figures look most encouraging. So far as the youngsters, the managing agents and the sponsors of the mode B1 providers are concerned, there is a great enthusiasm for what I can only describe as an enormous achievement by all concerned, in particular, the officials of the Manpower Services Commission.

Question put and agreed to.

Adjourned accordingly at two minutes past Three o'clock.